Daves v. Dallas County

Case: 18-11368 Document: 00516696104 Page: 1 Date Filed: 03/31/2023

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

FILED
March 31, 2023
No. 18-11368
Lyle W. Cayce
Clerk

Shannon Daves; Shakena Walston; Erriyah Banks;
Destinee Tovar; Patroba Michieka; James Thompson, On
Behalf of Themselves and All Others Similarly
Situated; Faith in Texas; Texas Organizing Project
Education Fund,

Plaintiffs—Appellants Cross-Appellees,

versus

Dallas County, Texas; Ernest White, 194th; Hector
Garza, 195th; Raquel Jones, 203rd; Tammy Kemp, 204th;
Jennifer Bennett, 265th; Amber Givens-Davis, 282nd;
Lela Mays, 283rd; Stephanie Mitchell, 291st; Brandon
Birmingham, 292nd; Tracy Holmes, 363rd; Tina Yoo
Clinton, Number 1; Nancy Kennedy, Number 2; Gracie
Lewis, Number 3; Dominique Collins, Number 4; Carter
Thompson, Number 5; Jeanine Howard, Number 6; Chika
Anyiam, Number 7 Judges of Dallas County, Criminal
District Courts,

Defendants—Appellees Cross-Appellants,

Marian Brown; Terrie Mcvea; Lisa Bronchetti; Steven
Autry; Anthony Randall; Janet Lusk; Hal Turley,
Dallas County Magistrates; Dan Patterson, Number 1;
Julia Hayes, Number 2; Doug Skemp, Number 3; Nancy
Mulder, Number 4; Lisa Green, Number 5; Angela King,
Number 6; Elizabeth Crowder, Number 7; Carmen White,
Number 8; Peggy Hoffman, Number 9; Roberto Canas, Jr.,
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Number 10; Shequitta Kelly, Number 11 Judges of Dallas
County, Criminal Courts at Law,

Defendants—Appellees.

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-154

Before Richman, Chief Judge, and Jones, Smith, Stewart,
Dennis, Elrod, Southwick, Haynes, Graves, Higginson,
Willett, Ho, Duncan, Engelhardt, and Wilson, Circuit
Judges.*
Edith H. Jones, Circuit Judge:
In a second round of en banc review, we conclude that this case, whose
aim was to revise by federal decree the Texas state court procedures for
felony and misdemeanor pretrial bail, should never have been brought in
federal court. We hold that a string of consistent Supreme Court authority
commencing with Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971),
requires federal courts to abstain from revising state bail bond procedures on
behalf of those being criminally prosecuted, when state procedures allow the
accused adequate opportunities to raise their federal claims.
Recent years saw a surge of interest in criminal procedure reform.
Lawsuits have been filed nationwide seeking to mitigate state and local bail
bonding requirements.1 One such suit resulted in a decision by this court that

*
Judge Ho concurs in the court’s ruling on abstention only, and not in the court’s
ruling on mootness. Judge Oldham is recused and did not participate. Judge Douglas was
not a member of the court when this case was submitted to the court en banc and did not
participate in this decision.
1
See, e.g., H.C. v. Chudzik, No. 5:22-cv-1588 (E.D. Pa. Apr. 25, 2022), ECF No. 1;
The Bail Project, Inc. v. Comm’r, Ind. Dep’t of Ins., No. 1:22-cv-862 (S.D. Ind. May 4, 2022),

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approved broad changes to misdemeanor bail bond procedures in Harris
County, Texas. Compare ODonnell v. Harris Cnty., 882 F.3d 528 (5th Cir.
2018), withdrawn and superseded on panel reh’g, 892 F.3d 147 (5th Cir. 2018)
(ODonnell I), with ODonnell v. Goodhart, 900 F.3d 220 (5th Cir. 2018)
(ODonnell II) (trimming terms of original remedial order). This case
followed in its wake. But ODonnell’s analysis was debatable, though it bound
the district court and our initial three-judge appellate panel in regard to
Dallas County procedures. See Daves v. Dallas Cnty., 984 F.3d 381 (5th Cir.
2020), vacated, 988 F.3d 834 (5th Cir. 2021). The panel decision here
affirmed in part preliminary injunctive relief mirroring that in ODonnell and
remanded for further proceedings. Id. at 388, 414.
In due course, our court voted to reconsider this case en banc. Daves
v. Dallas Cnty., 988 F.3d 834 (5th Cir. 2021). While the en banc case was
pending, the Texas legislature passed a new law (Act of August 31, 2021, 87th
Tex. Leg. 2d C.S., S.B. 6) (“S.B. 6”) that adopted some of ODonnell’s
innovations while tightening other bonding requirements. With this complex
backdrop, the en banc court resolved several issues raised by ODonnell,2
deferred deciding others,3 and remanded for the district court to consider two
issues: whether the case has been mooted by the new law’s taking effect, and

ECF No. 1; Allison v. Allen, No. 1:19-cv-01126 (M.D.N.C. Nov. 12, 2019), ECF No. 1; Ross
v. Blount, No. 2:19-cv-11076 (E.D. Mich. Apr. 14, 2019), ECF No. 1.
2
We held that district and county court at law judges are protected by state
sovereign immunity in promulgating bail bond schedules and that plaintiffs lacked standing
to sue them on that basis. ODonnell I’s contrary conclusions regarding county court at law
judges were overruled. Daves v. Dallas Cnty., 22 F.4th 522, 540, 544 (5th Cir. 2022)
(en banc).
3
The en banc decision did not resolve whether the Dallas County Sheriff and
Dallas County are proper defendants, and it clarified that because only declaratory relief
was issued by the district court against the magistrate judges, they did not appeal, and we
issued no decision as to them. Id. at 545.

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whether the federal courts should have abstained pursuant to the body of
caselaw rooted in Younger v. Harris.4 The district court then declared moot
the plaintiffs’ challenge to Dallas County bail procedures, but it concluded
the federal court should not have abstained.
This opinion completes our en banc review by addressing the district
court’s decisions on the remanded questions. Although the parties’ dispute
has become moot in light of S.B. 6, the antecedent question of federal
jurisdiction remains.
BACKGROUND
A complete factual and procedural background appears in the initial
en banc decision in this case. Daves v. Dallas Cnty., 22 F.4th 522, 529–31
(5th Cir. 2022). A few relevant highlights may be recapitulated.
The plaintiffs, proceeding as a class, comprised people who had been charged
with misdemeanor and felony crimes in Dallas County and who were
allegedly unconstitutionally incarcerated pretrial solely because they were
financially unable to post required bail. Bail decisions, they claimed, were
made via an offense-based schedule promulgated by the district and county
court at law judges.5 The schedule allegedly prevented consideration of the
defendants’ ability to pay, and it was rigidly enforced by the magistrate judges
who initially make these decisions. The County Sheriff correspondingly
violated arrestees’ constitutional rights by jailing them for failure to make

4
The defendants have preserved the issue of abstention throughout this litigation.
5
It bears noting that Texas law at the time this suit was filed plainly required bail
decisions to rest on a number of factors, including, inter alia, the nature of the offense, the
“future safety of a victim,” the detainee’s “ability to make bail,” and a proscription against
using bail “to make it an instrument of oppression.” Tex. Code Crim. P. art. 17.15
(1993).

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bail. Thus, the plaintiffs were all subject to ongoing state criminal
proceedings.
Were the federal court to agree that pretrial incarceration despite
inability to pay for bail is unconstitutional, the plaintiffs proposed a variety of
fundamental alterations in the pretrial decisional process, including but not
limited to obtaining detailed financial assessments from each arrestee, strict
time limits for decisionmaking, and the possibility of immediate appeal.
As had happened in the ODonnell case, the plaintiffs sought the appointment
of a federal monitor over the Dallas County criminal justice system.
Among other things, the monitor would receive periodic reports and be
empowered to respond to any individual defendant or his counsel or family
member who believed at any time that the federally installed bail procedures
were not being followed. The district court held a hearing, found the local
processes unconstitutional on the above-stated basis,6 and ordered a
preliminary injunction essentially in accord with plaintiffs’ prescription.
After this court’s en banc decision winnowed nonjusticiable claims
and remanded, there remained potential liability of the Dallas magistrates
(for declaratory relief only pursuant to Section 1983(e)), the Sheriff, and the
County. The district court thoroughly considered the two issues we
remanded. The district court now declared that the controversy had become
moot by the passage and December 2, 2021, effective date of S.B. 6.
Substantial changes to statewide bail bond procedures had been wrought,
which directly affected the plaintiffs’ claims.7 Overall, the court found, it

6
The court upheld plaintiffs’ procedural due process and equal protection claims
but denied claims sounding in substantive due process.
7
Among other things, S.B. 6 requires “individualized consideration of all
circumstances” and all statutory factors within 48 hours of arrest. Tex. Code Crim. P.
art. 17.028(a). The magistrate must “impose the least restrictive conditions” necessary to
“reasonably ensure the defendant’s appearance in court” considering the safety of “the

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could not assess the impact of the statutory changes based on a superseded
legal regime and proceedings that had occurred years earlier. S.B. 6 had
mooted the controversy.
With respect to Younger abstention, the court focused on the
doctrine’s requirement that a plaintiff must have an “adequate opportunity”
in the state proceedings to raise his constitutional challenges. The court
relied on a statement in Gibson v. Berryhill that “[Younger] naturally
presupposes the opportunity to raise and have timely decided by a competent
state tribunal the federal issues involved.” 411 U.S. 564, 577, 93 S. Ct. 1689,
1697 (1973). The district court deduced, “for an alternative mechanism to
press federal claims in state court to qualify as adequate, it must be timely.”
(emphasis original). But state habeas proceedings to challenge bail amounts
would be “inadequate, i.e., too slow.” The court therefore declined to
abstain based on Younger and its progeny.
Having retained jurisdiction, the en banc court obtained supplemental
briefing from the parties before re-evaluating the remanded issues. Plaintiffs
continue to contend that Dallas bail bond hearings fall short under the
Constitution because there is no requirement of adversary procedures to
determine bail, no requirement of factfindings on the record that pretrial
detention is necessary to satisfy a compelling state interest, and no
presumption against cash bail. The district court’s decision on abstention is
discretionary, but we review de novo whether the prerequisites of abstention

community, law enforcement, and the victim of the alleged offense.” Id. art. 17.028(b).
A financial affidavit is required to be provided for each arrestee charged with an offense
punishable as a Class B misdemeanor or higher and who is unable to provide the amount of
bail required by a schedule or judicial order. Id. art. 17.028(f). Any defendant who
completes a financial affidavit and cannot pay the amount of bail is entitled to a “prompt
review . . . on the bail amount.” Id. art. 17.028(h). If the magistrate does not lower the bail
for that defendant, the magistrate must make written factfindings. Id.

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have been satisfied. See Tex. Ass’n of Bus. v. Earle, 388 F.3d 515, 518 (5th Cir.
2004). A ruling on mootness is reviewed de novo.
DISCUSSION
1. Abstention
Despite the possibility of mootness, this court has discretion to
determine whether a federal court should have proceeded to the merits of
plaintiffs’ bail “reform” lawsuit in the first place. Justice Ginsburg
succinctly restated the applicable principles in Sinochem International v.
Malaysia International Shipping, 549 U.S. 422, 430–31, 127 S. Ct. 1184, 1191
(2007). To paraphrase her writing, a federal court may not rule on the merits
of a case without first determining its jurisdiction, 8 but there is no mandatory
“sequencing of jurisdictional issues,”9 and a federal court has leeway “to
choose among threshold grounds for denying audience to a case on the
merits.” Id. at 431, 127 S. Ct. at 1191 (quoting Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 585, 119 S. Ct. 1563, 1570 (1999)). As Sinochem further
illustrated, “a federal court [need not] decide whether the parties present an
Article III case or controversy before abstaining under Younger v. Harris.”
Id.
The imperative of reconsidering abstention here is clear. A number
of cases in this circuit and others are asking federal courts to judicially order
and enforce state court bail reforms. Several federal courts, including the
ODonnell I court, have rejected abstention without exhaustive consideration.

8
See Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 93–95, 118 S. Ct. 1003,
1012–13 (1998).
9
Sinochem Int’l v. Malaysia Int’l Shipping, 549 U.S. 422, 431, 127 S. Ct. 1184, 1191
(2007) (quoting Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S. Ct. 1563, 1570
(1999)).

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But if abstention is mandated by Younger’s rationale, much time and money,
as well as judicial resources, will be saved on litigation in federal court.
The complexity of handling claims for institutional state bail reform in
federal court is well demonstrated by the justiciability issues we confronted,
and avoided, in the initial en banc proceeding. Friction exists with state
criminal courts where, overlooking or misinterpreting abstention, federal
courts have forced bail bond changes.10 Finally, the ultimate impact of
abstention does not deprive plaintiffs of a remedy. If required by Younger,
abstention means they must pursue their claims, or whatever remains of them
after S.B. 6, in state courts, with the possibility of final oversight by the U.S.
Supreme Court. Our Federalism, the guiding light behind Younger, seems to
have been forgotten, especially in regard to this species of direct federal
intervention into ongoing state criminal proceedings that already provide an
opportunity to raise constitutional challenges.
To counteract judicial amnesia, it is necessary to recall the origin of
the Younger abstention doctrine. By the early 1970s, federal courts were
awash (by the standards of that day)11 in adjudicating a heady mix of newly
created constitutional rights. Naming just a few subjects of litigation, courts
were reviewing collateral attacks on state criminal convictions, adjudicating
the constitutionality of state jail and prison conditions, and addressing due
process questions that arose in every public setting from elementary school
discipline and welfare termination to employee disputes. Ideas of deference

10
In the ODonnell case, for instance, the federal monitor for Harris County has
determined “errors” made by judicial officers in setting bail and identified “violations” of
the federal consent decree. See, e.g., Fourth Six-Month Monitor Report, ODonnell v.
Harris County, 4:16-cv-1414 (S.D. Tex. Mar. 3, 2022), ECF No. 732-1 at 15–18.
11
See, e.g., Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal
Judgments, 38 U. Chi. L. Rev. 142 (1970); Henry J. Friendly, Federal
Jurisdiction: A General View 15–54 (1973).

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to state governmental systems or state courts seemed to have been
overshadowed by the Supreme Court’s enthusiasm for effectuating novel
notions of social justice and personal rights.
Most pertinent here, federal courts had begun hearing a variety of
First Amendment challenges to various state criminal laws. Their direct
incursions into state criminal proceedings were spurred by the Supreme
Court’s decision in Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116 (1965),
where the Court held that an injunction could properly be issued against
enforcement of certain state criminal statutes in the face of ongoing
prosecutorial actions.
Six years later, however, the Court signaled a major retreat from
Dombrowski in Younger v. Harris, an 8-1 decision with the principal opinion
by Justice Black.12 Younger rejected two notions: that adverse impacts on
First Amendment rights alone could justify federal intervention, and that the
ordinary pains of undertaking a defense against criminal charges could
constitute sufficiently irreparable injury for equitable relief. 410 U.S. at 49,
53, 91 S. Ct. at 753, 755. Thus, as succinctly stated in a companion case,
Younger held that “a federal court should not enjoin a state criminal
prosecution begun prior to the institution of the federal suit except in very
unusual situations, where necessary to prevent immediate irreparable
injury.” Samuels v. Mackell, 401 U.S. 66, 69, 91 S. Ct. 764, 766 (1971).
Justice Black’s opinion traces a “longstanding public policy against
federal interference with state court proceedings,” based in part on “the
basic doctrine of equity jurisprudence that courts of equity should not act,

12
Technically, Younger was decided along with five companion cases: Samuels v.
Mackell, 401 U.S. 66, 91 S. Ct. 764 (1971); Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758 (1971);
Perez v. Ledesma, 401 U.S. 82, 91 S. Ct. 674 (1971); Dyson v. Stein, 401 U.S. 200, 91 S. Ct.
769 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S. Ct. 777 (1971).

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and particularly should not act to restrain a criminal prosecution, when the
moving party has an adequate remedy at law and will not suffer irreparable
injury if denied equitable relief.” Younger, 401 U.S. at 43–44, 91 S. Ct.
at 750.13 The Court’s opinion relied heavily for this proposition on Fenner v.
Boykin, 271 U.S. 240, 244, 46 S. Ct. 492, 493 (1926) (“The accused should
first set up and rely upon his defense in the state courts, even though this
involves a challenge of the validity of some statute, unless it plainly appears
that this course would not afford adequate protection.”). Citing Fenner in an
earlier case, Justice Frankfurter emphasized that “[f]ew public interests have
a higher claim upon the discretion of a federal chancellor than the avoidance
of needless friction with state policies . . . [relating to] . . . the enforcement of
the criminal law.” R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 500,
61 S. Ct. 643, 645 (1941) (citations omitted). The legacy of federal court
noninterference in equity with state proceedings is over a century old.
But there is also a deeper reason for restraining federal courts acting
in equity from getting involved in state criminal prosecutions. Justice Black
explained
the notion of “comity,” that is, a proper respect for state
functions, a recognition of the fact that the entire country is
made up of a Union of separate state governments, and a
continuance of the belief that the National Government will
fare best if the States and their institutions are left free to
perform their separate functions in their separate ways.

13
The Court distinguished cases filed under the doctrine of Ex parte Young,
209 U.S. 123, 28 S. Ct. 441 (1908), because, “when absolutely necessary for the protection
of constitutional rights,” “under extraordinary circumstances, where the danger of
irreparable loss is both great and immediate,” federal courts may enjoin potential state
prosecutions. Younger, 401 U.S. at 45, 91 S. Ct. at 751 (quoting Fenner v. Boykin, 271 U.S.
240, 243–44, 46 S. Ct. 492, 493 (1926)).

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Id. at 44, 91 S. Ct. at 750. This arrangement he deemed “Our Federalism,”
with roots in the profound debates and compromises that shaped the
Constitution. Id.
Controversial as Younger has seemed to those steeped in the judicial
activism of the last half century,14 the Supreme Court, far from disavowing
or materially narrowing the doctrine, repeatedly expanded its reach in the
succeeding cases.15 The doctrine remains controlling today, with particular
application to interventions into state criminal procedures. Younger requires
federal court abstention when three criteria are met: “(1) the federal
proceeding would interfere with an ‘ongoing state judicial proceeding’;
(2) the state has an important interest in regulating the subject matter of the
claim; and (3) the plaintiff has ‘an adequate opportunity in the state
proceedings to raise constitutional challenges.’” Bice v. La. Pub. Def. Bd.,

14
“There is no more controversial, or more quickly changing, doctrine in the
federal courts today than the doctrine of ‘Our Federalism,’ which teaches that federal
courts must refrain from hearing constitutional challenges to state action under certain
circumstances in which federal action is regarded as an improper intrusion on the right of
a state to enforce its laws in its own courts.” 17B Charles Alan Wright, Arthur
R. Miller & Vikram D. Amar, Federal Practice & Procedure § 4251 (3d
ed.) (April 2022 Update) (footnotes omitted).
15
See, e.g., Samuels, 401 U.S. 66, 91 S. Ct. 764 (extending Younger, in the state
criminal prosecution context, to actions seeking declaratory relief); Huffman v. Pursue,
Ltd., 420 U.S. 592, 95 S. Ct. 1200 (1975) (extending Younger to civil proceedings in which
important state interests are involved); Kugler v. Helfant, 421 U.S. 117, 95 S. Ct. 1524
(1975) (prohibiting federal court intervention in state criminal proceedings to suppress
illegally obtained evidence); Juidice v. Vail, 430 U.S. 327, 97 S. Ct. 1211 (1977) (extending
Younger to state civil contempt procedures); Trainor v. Hernandez, 431 U.S. 434, 97 S. Ct.
1911 (1977) (extending Younger to state civil enforcement proceedings); Moore v. Sims,
442 U.S. 415, 99 S. Ct. 2371 (1979) (extending Younger to state child welfare proceedings);
Middlesex Cnty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 102 S. Ct. 2515
(1982) (Younger applied to attorney discipline proceeding); Pennzoil Co. v. Texaco, Inc.,
481 U.S. 1, 107 S. Ct. 1519 (1987) (extending Younger to prevent federal court interference
with the posting of bond pending appeal).

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677 F.3d 712, 716 (5th Cir. 2012) (quoting Middlesex Cnty. Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S. Ct. 2515, 2521 (1982)).16
Rather than expound on unrelated nuances of Younger, we principally
rely on the Supreme Court’s decision in O’Shea v. Littleton, 414 U.S. 488,
94 S. Ct. 669 (1974), which is closely on point.17 In O’Shea, the Court held
that a group of plaintiffs had no standing to challenge various Cairo, Illinois
criminal practices, notably including the imposition of excessive bail, which
were alleged to be racially discriminatory and discriminatory against
indigents. Id. at 498, 94 S. Ct. at 677. The Court alternatively held that even
if some plaintiffs had standing, the principles of Younger mandated that no
federal equitable relief could be granted in the absence of irreparable injury

16
Further, although none is applicable here, there are three exceptions to Younger:
“(1) the state court proceeding was brought in bad faith or with the purpose of harassing
the federal plaintiff, (2) the state statute is ‘flagrantly and patently violative of express
constitutional prohibitions in every clause, sentence, and paragraph, and in whatever
manner and against whomever an effort might be made to apply it,’ or (3) application of the
doctrine was waived.” Tex. Ass’n of Bus., 388 F.3d at 519 (quoting Younger, 401 U.S. at
53–54, 91 S. Ct. at 755).
17
Judge Southwick’s solo opinion purports to be agnostic on whether Younger
abstention ought to apply to constitutional challenges to bail bond procedures, which he
considers somehow severable from a state’s overall criminal process. In light of that
threshold ambiguity, it seems unnecessary to discuss his lengthy arguendo reasoning as to
why Younger should not apply in this case. Suffice it to say, first, that categorically
excluding from the ambit of Younger abstention (other abstention prerequisites being
present) constitutional claims involving bits and pieces of the criminal process, e.g., bail
bonding or public defenders appointments, is fundamentally at odds with comity and
federalism. In addition, the remainder of this opinion explains why Judge Southwick’s
arguendo assertions denying application of Younger here are in error: A federal equitable
remedy for allegedly unconstitutional bail bond procedures would seriously interfere with
ongoing criminal proceedings. And requiring “timeliness” of bail bond review to forestall
abstention is not supported by any Younger precedent, is contradicted by O’Shea and other
precedent, and is contraindicated by a multitude of available, adequate Texas procedures.

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“both great and immediate.” Id. at 499, 94 S. Ct. at 678 (quoting Younger,
401 U.S. at 46, 91 S. Ct. at 751).18
In O’Shea, “[t]he Court of Appeals disclaimed any intention of
requiring the District Court to sit in constant day-to-day supervision of these
judicial officers, but the ‘periodic reporting’ system it thought might be
warranted would constitute a form of monitoring of the operation of state
court functions that is antipathetic to established principles of comity.” Id.
at 501, 94 S. Ct. at 679 (footnote omitted). The Supreme Court also pointed
out that any person charged with crime, who became dissatisfied with the
officials’ compliance with a federal injunction, would have recourse to
federal court seeking compliance or even contempt. Enforcement of the
injunction would mark “a major continuing intrusion . . . into the daily
conduct of state criminal proceedings.” Id. at 502. Such extensive federal
oversight would constitute “an ongoing federal audit of state criminal
proceedings . . . indirectly accomplish[ing] the kind of interference that
Younger v. Harris . . . and related cases sought to prevent.” Id. at 500,
94 S. Ct. at 678.19
The Supreme Court coupled its concerns about the interference with
ongoing criminal proceedings with its description of various adequate legal
remedies available to the plaintiff class members in the course of criminal
defense. Id. at 502, 94 S. Ct. at 679. These included, inter alia, direct or
postconviction collateral review; disciplinary proceedings against judges; and

18
Note the procedural similarity between O’Shea and this case: standing was at
issue as well as Younger abstention.
19
Judge Southwick avers that the proposed injunction in O’Shea seems far broader
than whatever relief might be ordered in this case. His surmise is contradicted by the actual
injunction ordered in ODonnell I and copied by the district court here, and by the plaintiffs’
continued insistence on monitoring the details of bail bond procedures, i.e., adversary
hearings, written factfindings, and the enforcement of a presumption against cash bail.

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federal habeas relief. The Court did not engage in extensive factbound
review of the “adequacy” or “timeliness” of state procedures in practice.
Only a few years after O’Shea, this court found it controlling when
faced with a Galveston County, Texas prisoner’s complaint on behalf of
himself and others against a bevy of local pretrial practices, including
allegedly excessive bail determinations made against indigent defendants.
See Tarter v. Hury, 646 F.2d 1010, 1013 (5th Cir. Unit A June 1981)
(discussing O’Shea). This court affirmed the dismissal of the plaintiff’s
complaint. The court held that “[b]ecause O’Shea involved a challenge to
the imposition of excessive bail, it is conclusive as to Tarter’s claim for
equitable relief based on that ground.” Id. (footnote omitted). Just before
stating this conclusion, the panel had recapitulated that the Supreme Court
refused to consider declaratory or injunctive relief in O’Shea that would
“require excessive federal interference in the operation of state criminal
courts.” Id.20
Together, O’Shea and Tarter supply compelling precedent for
withholding federal adjudication of the bail complaint in both ODonnell I and
Daves. Yet ODonnell I held these decisions inapposite for two reasons.
First, after listing the three prerequisites for Younger abstention,21 the court

20
In Judge Southwick’s view, the en banc decision in Pugh v. Rainwater, 572 F.2d
1053 (5th Cir. 1978) (en banc), is our court’s “last word” on Younger although it does not
mention Younger. Besides the obvious paradox, which probably arises from the litigation
relationship between Gerstein and Pugh, that view is counterintuitive because two of the
judges who sat on the Pugh en banc court joined in Tarter. It is also irrelevant, because
Pugh, if it represented a decision not to abstain, was superseded by O’Shea, which bound the
Tarter panel.
21
The plaintiffs in ODonnell I conceded that the second prong of Younger is met.
Indeed, states have a vital interest in regulating their pretrial criminal procedures including
assessment of bail bonds. See Pugh, 572 F.2d at 1056 (holding that a state has “a compelling
interest in assuring the presence at trial of persons charged with crime”); see also Stack v.
Boyle, 342 U.S. 1,4, 72 S. Ct. 1, 3 (1951) (“The right to release before trial is conditioned

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held the third prong—adequate opportunity to raise constitutional questions
in the state proceedings—was unsatisfied due to the Supreme Court’s
decision in Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854 (1975). Second,
dispatching Younger’s first prong, ODonnell I held that the abstention
principles of comity and federalism were not implicated because “[t]he
injunction sought by ODonnell seeks to impose ‘nondiscretionary procedural
safeguard[s],’ . . . [and] will not require federal intrusion into pre-trial
decisions on a case-by-case basis.” ODonnell I, 892 F.3d at 156 (citing Tarter,
646 F.2d at 1013–14; O’Shea, 414 U.S. at 499–502, 94 S Ct. at 677–79).
Both of these reasons are incorrect.
Gerstein at first blush appears inconsistent with Younger abstention
because the Supreme Court there upheld a federal court injunction requiring
a judicial hearing in Florida courts on probable cause for pretrial detention.
Gerstein, 420 U.S. at 125, 95 S. Ct. 868–69. And in footnote nine, the Court’s
opinion states that abstention was inappropriate.22 The ODonnell I panel
relied on this footnote almost exclusively. ODonnell I interpreted this
footnote to find Younger inapt because “the Supreme Court has already
concluded, the relief sought by ODonnell—i.e., the improvement of pretrial

upon the accused’s giving adequate assurance that he will stand trial and submit to sentence
if found guilty.”).
22
Gerstein’s footnote nine states, “The District Court correctly held that
respondents’ claim for relief was not barred by the equitable restrictions on federal
intervention in state prosecutions, Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746 (1971). The
injunction was not directed at the state prosecutions as such, but only at the legality of
pretrial detention without a judicial hearing, an issue that could not be raised in defense of
the criminal prosecution. The order to hold preliminary hearings could not prejudice the
conduct of the trial on the merits.” Gerstein, 420 U.S. at 108 n.9, 95 S. Ct. at 860 n.9 (citing
Conover v. Montemuro, 477 F.2d 1073, 1082 (3d Cir. 1972); Perez, 401 U.S. 82, 91 S. Ct. 674;
Stefanelli v. Minard, 342 U.S. 117, 72 S. Ct. 118 (1951)).

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procedures and practice—is not properly reviewed by criminal proceedings in
state court.” ODonnell I, 892 F.3d at 156 (emphasis added).
But Gerstein is distinguishable on a number of grounds. As the Second
Circuit noted, “it is elementary that what the Court said must be viewed in
the light of the factual and legal setting the Court encountered.” Wallace v.
Kern, 520 F.2d 400, 406 (2d Cir. 1975). The Wallace court explained in detail
why, under principles established in Younger and its progeny, Gerstein did not
authorize a New York federal district court to require an evidentiary hearing
on bail determinations within a certain period of time. See id. at 404–08.
Wallace accordingly reversed the lower court’s injunction. Like Tarter,
Wallace is directly on point.
To explain Younger, the Wallace court regarded as insupportable
“[t]he proposition that the principles underlying Younger are applicable only
where the federal court is seeking to enjoin a pending state criminal
prosecution.” Id. at 405. Observing that the Supreme Court had extended
Younger to civil cases in which the state has a “particular interest,” Wallace
reasoned that it would be anomalous to require abstention in such civil cases
“but not [in] a bail application proceeding in which the people of the State of
New York have a most profound interest.” Id.23 The court moved on to
discuss O’Shea’s rebuke to the lower courts against conducting an “ongoing
federal audit of state criminal proceedings.” Id. at 406 (quoting O’Shea,
414 U.S. at 500, 94 S. Ct. at 678). The Wallace court commented:
This is precisely the mischief created by the order below.
Having provided for new bail hearing procedures which fix the
time of, the nature of and even the burden of proof in the

23
Further, “[t]he assurance that a defendant who has been indicted for a crime be
present to stand his state trial and be sentenced if convicted is patently of prime concern to
the state.” Id.

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evidentiary hearings, the order would permit a pre-trial
detainee who claimed that the order was not complied with to
proceed to the federal court for interpretations thereof. This
would constitute not only an interference in state bail hearing
procedures, but also the kind of continuing surveillance found
to be objectionable in O’Shea.24
The Wallace court further distinguished Gerstein legally and factually.
Gerstein, the court noted, is literally surrounded by other Supreme Court
decisions extending the principles of Younger abstention, two of which were
decided within a few months of Gerstein.25 Accordingly, the Wallace court
found Gerstein “clearly not decisive” due to the Supreme Court’s
explanation that in Florida, “the federal plaintiffs there had no right to
institute state habeas corpus proceedings . . . and that their only other state
remedies were a preliminary hearing which could take place only after 30 days
or an application at an arraignment, which was often delayed a month or more
after arrest.” Id. (emphasis added). The Wallace court stated, “[w]e do not
consider this discussion feckless.” Id. New York law, in contrast, was not
bereft of remedies allowing defendants timely to challenge bail
determinations. Id. at 407. Thus, Younger controlled, and the Wallace court
reversed injunctive relief that would have compelled federal oversight of
New York state bail procedures. Wallace remains good law in the Second
Circuit. See Kaufman v. Kaye, 466 F.3d 83, 86 (2d Cir. 2006).
Not only did ODonnell I misperceive the context and limited
implications of Gerstein, but the court also strayed far off the mark in asserting
Younger abstention is avoidable if the state court review procedures are not
“properly” addressing certain constitutional claims. As the Supreme Court

24
Id. at 406.
25
See Huffman, 420 U.S. 592, 95 S. Ct. 1200; Schlesinger v. Councilman, 420 U.S.
738, 95 S. Ct. 1300 (1975).

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later explained, “the teaching of Gerstein was that the federal plaintiff must
have an opportunity to press his claim in the state courts.” Moore v. Sims,
442 U.S. 415, 432, 99 S. Ct. 2371, 2381 (1979) (citing Juidice v. Vail, 430 U.S.
327, 336–37, 97 S. Ct. 1211, 1217–18 (1977)). Juidice had applied Younger
where “it is abundantly clear that appellees had an opportunity to present
their federal claims in the state proceedings. No more is required to invoke
Younger abstention. . . . [F]ailure to avail themselves of such opportunities
does not mean that the state procedures were inadequate.” Juidice, 430 U.S.
at 337, 97 S. Ct. at 1218 (emphases added).
As noted, Gerstein addressed detention without a probable cause
finding and without any avenue for judicial review.26 All that Younger and its
progeny mandate, however, is an opportunity to raise federal claims in the
course of state proceedings. Texas law expressly provides mechanisms for
challenging excessive bail. A person may move for bond reduction, as one of
the named plaintiffs in this case successfully did. See Tex. Code
Crim. P. art. 17.09(3). Further, “[t]he accused may at any time after being
confined request a magistrate to review the written statements of the
witnesses for the State as well as all other evidence available at that time in
determining the amount of bail.” Id. art. 17.33. In addition, “[t]he accused
in any felony case shall have the right to an examining trial before indictment
in the county having jurisdiction of the offense . . . at which time the
magistrate at the hearing shall determine the amount or sufficiency of bail, if
a bailable case.” Id. art. 16.01. And there appears to be no procedural bar to
filing a motion for reconsideration of any of these rulings.
A petition for habeas corpus is also available. “Where a person has

26
In Middlesex County, the Court stated that in Gerstein, “the issue of the legality
of a pretrial detention could not be raised in defense of a criminal prosecution.” 457 U.S. at
436 n.14, 102 S. Ct. at 2523 n. 14 (emphasis added).

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been committed to custody for failing to enter into bond, he is entitled to the
writ of habeas corpus, if it be stated in the petition that there was no sufficient
cause for requiring bail, or that the bail required is excessive.” Id. art. 11.24.
The remedy is release or reduction in bail. Id. This provision is no dead
letter.27 Texas courts have shown themselves capable of reviewing bail
determinations. See, e.g., Ex parte Gomez, 2022 WL 2720459 (Tex. App.
July 14, 2022);28 Ex parte McManus, 618 S.W.3d 404, 406–09 (Tex. App.
2021) (performing a holistic analysis of an excessive bail claim, including the
ability to make bail); Ex parte Robles, 612 S.W.3d 142, 146–49 (Tex. App.
2020) (same); Ex parte Castille, No. 01-20-00639-CR, 2021 WL 126272, at
*2–6 (Tex. App. Jan. 14, 2021) (same).
Summing up why the ODonnell I court went wrong on the third
Younger prong—adequacy of state remedies—is the response offered by the
Supreme Court in Middlesex County Ethics Committee: “Minimal respect for
the state processes, of course, precludes any presumption that the state courts
will not safeguard federal constitutional rights.” 457 U.S. at 431, 102 S. Ct.
at 2521. That presumption was violated in ODonnell I’s rejection of adequate
state remedies because Texas detainees have opportunities, beyond those

27
Plaintiffs argue that because Younger’s third prong requires that there be an
adequate opportunity in the state proceedings to raise constitutional challenges, collateral
proceedings like habeas cannot, by definition, qualify as adequate. This is refuted by
O’Shea, which specifically referenced the availability of state postconviction collateral
review as constituting an adequate opportunity. 414 U.S. at 502, 94 S. Ct. at 679; see also
Tex. Ass’n of Bus., 388 F.3d at 521 (referencing mandamus as an adequate opportunity to
raise constitutional challenges).
28
Ex parte Gomez is cited by plaintiffs for the proposition that Texas habeas courts
will not review “procedural issues” related to bail. 2022 WL 2720459, at *5–6 (considering
the procedural issue of the appointment of counsel at a bail hearing). But in that habeas
case, the court adjudicated a defendant’s challenge to his bail, which entailed review of the
relevant factors, including ability to pay. That constitutes an adequate opportunity.
See O’Shea, 414 U.S. at 502, 94 S. Ct. at 679.

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deemed adequate in O’Shea, to raise their federal claims.
Moving to the first Younger factor—whether equitable relief by a
federal court would interfere with ongoing state proceedings—the
ODonnell I court concluded that the supervisory bail injunction at issue did
not implicate concerns about comity and federalism because it “will not
require federal intrusion into pre-trial decisions on a case-by-case basis.”
ODonnell I, 892 F.3d at 156 (comparing with O’Shea, 414 U.S. at 499–502,
94 S. Ct. at 678–79). But the injunction issued in ODonnell I, and mirrored
by Daves, flatly contradicts the very language in O’Shea. The ODonnell I
“model injunction” expressly mandated the type of “periodic reporting”
scheme the Supreme Court precluded. Compare id. at 164–66 (“To enforce
the 48-hour timeline, the County must make a weekly report to the district
court of misdemeanor defendants identified above for whom a timely
individual assessment has not been held.”), with O’Shea, 414 U.S. at 501,
94 S. Ct. at 679 (“‘periodic reporting’ . . . would constitute a form of
monitoring of the operation of state court functions that is antipathetic to
established principles of comity”).29 And it opens the federal courts any time
an arrestee cries foul. ODonnell I, 892 F.3d at 165–66. Even before this court
reconsidered ODonnell I’s rulings en banc, we found it necessary to
disapprove several of that decision’s overreaching injunctive provisions. See
ODonnell II, 900 F.3d at 224–28 (overruling provisions that would have freed
defendants for technical noncompliance with federal orders).
In addition to these requirements, considerable mischief remains.30

29
The district court in Daves implemented the same reporting requirement
authorized in ODonnell I.
30
In fact, in their supplemental briefing, plaintiffs’ claims for relief including on-
the-record hearings and detailed factual opinions concerning bail determinations reify how
far federal courts would have to intrude into daily magistrate practices.

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To paraphrase Wallace, “[t]his is precisely the mischief created by the order
below . . . . [T]he order would permit a pre-trial detainee who claimed that
the order was not complied with to proceed to the federal court for
interpretations thereof.” 520 F.2d at 406. Such extensive federal oversight
constitutes “an ongoing federal audit of state criminal proceedings . . .
indirectly accomplish[ing] the kind of interference that Younger v. Harris . . .
and related cases sought to prevent.” O’Shea, 414 U.S. at 500, 94 S. Ct. at
678.
For all of these reasons, we hold that pursuant to Younger, O’Shea,
Tarter, and Wallace, neither ODonnell I nor this case should have been
adjudicated in federal court. We overrule ODonnell I’s holding against
abstention.31 The injunctions issued in Houston and Dallas plainly show
federal court involvement to the point of ongoing interference and “audit”
of state criminal procedures. Further, in stark contrast to Gerstein, Texas
courts are neither unable nor unwilling to reconsider bail determinations
under the proper circumstances, thus providing state court detainees the
chance to raise federal claims without the need to come to federal court.
The availability of state court remedies counsels that federal courts may not
intervene under equity jurisprudence to decide these disputes. 32
Plaintiffs and the district court raise objections to the requirement of
Younger abstention. We address them in turn.

31
In line with Judge Southwick’s agnosticism about abstention, he does not seem
to disagree with overruling ODonnell I.
32
For those concerned that no final federal remedy is available, please recall that
the relevant Supreme Court decisions prohibiting incarceration of indigent defendants for
their inability to pay post-conviction fines arose, respectively, from direct appeal (Williams
v. Illinois, 399 U.S. 235, 90 S. Ct. 2018 (1970)) and state habeas (Tate v. Short, 401 U.S. 395,
91 S. Ct. 668 (1971)). Indeed, Tate’s ruling issued only a week after Younger itself.

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First, plaintiffs rely on decisions from other courts. The most
significant appellate court decision that stands in tension with our conclusion
is the Eleventh Circuit opinion in Walker v. City of Calhoun, 901 F.3d 1245
(11th Cir. 2018), which brushed away Younger because “[a]bstention . . . has
become disfavored in recent Supreme Court decisions.” Id. at 1254. This is
very strange. The case cited for that proposition involves state
administrative litigation, not interference in criminal proceedings. See Sprint
Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72, 134 S. Ct. 584, 588 (2013).
The Court in Sprint detracted not a whit from Younger’s ongoing force in
respect of criminal adjudication. See Sprint, 571 U.S. at 78, 134 S. Ct. at 591
(reaffirming that Younger continues to preclude “federal intrusion into
ongoing state criminal prosecutions”).33 Additionally, the Walker court
distinguished O’Shea on the basis, contrary to this case, that the injunction
sought by the Walker plaintiffs did not contemplate ongoing interference with
the prosecutorial process. Walker, 901 F.3d at 1255. Finally, because the
Walker court ended up vacating a “modest” remedial injunction (“modest”
in comparison with those imposed in ODonnell I and II and in Daves),34 it may
not have viewed Younger abstention as a decisive threshold issue.35
We disagree with some or all of the reasoning in other appellate court

33
Pace the Walker court, Wright & Miller’s long and detailed section on
Younger abstention nowhere implies that the doctrine has become “disfavored,” and the
paper supplements continue to cite cases applying Younger. See generally §§ 4251–55.
34
See Walker, 901 F.3d at 1255 (“Walker does not ask for the sort of pervasive
federal court supervision of State criminal proceedings that was at issue in O’Shea.”).
Notably, the district court injunction contained no ongoing reporting or supervisory
components. See Walker v. City of Calhoun, No. 4:15-CV-0170, 2017 WL 2794064, at *4–
5 (N.D. Ga. June 16, 2017), vacated, 901 F.3d 1245 (11th Cir. 2018).
35
A recent Eleventh Circuit decision also rejected a challenge to bail bond
procedures but of course followed Walker on Younger abstention. See Schultz v. Alabama,
42 F.4th 1298, 1312 (11th Cir. 2022).

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cases where Younger abstention was rejected, but in any event, they are
factually far afield from this one. Arevalo v. Hennessy, for example, is factually
distinguishable because the plaintiff challenging a bail determination had
fully exhausted his state remedies without success, so there remained no state
remedies available in which to raise his individual constitutional claims. See
882 F.3d 763, 767 (9th Cir. 2018). Two other cases found Younger
inapplicable where plaintiffs challenged law enforcement practices that, in
parallel with Gerstein, essentially prescribed pretrial detention without
probable cause. See Stewart v. Abraham, 275 F.3d 220, 225–26 (3d Cir. 2001)
(no abstention for “rearrest” policy implemented despite magistrates’
denials of probable cause); Fernandez v. Trias Monge, 586 F.2d 848, 851–53
(1st Cir. 1978) (rejecting abstention in the face of a law requiring juvenile
detentions without probable cause). The Sixth Circuit’s decision in Habich
v. City of Dearborn is inapposite because, as the defendant city conceded, the
plaintiff there could not assert any of her constitutional claims in the course
of a wholly distinct local administrative matter. 331 F.3d 524, 530–32 (6th
Cir. 2003). Without any available state law remedy, Younger did not apply.
Id.36
Second, the plaintiffs, the district court, and Judge Southwick fix
talismanic significance on one line in one Supreme Court case: “[Younger]
materially presupposes the opportunity to raise and have timely decided by a
competent state tribunal the federal issues involved.” Gibson, 411 U.S. at
577, 93 S. Ct. at 1697. They would infer that timeliness of state remedies is
required to prevent Younger abstention. But Gibson did not find an exception

36
Plaintiffs’ citation to DeSario v. Thomas is misleading because, despite the
court’s apparently belittling Wallace (on which we rely), the court also made clear that
Younger abstention is required where a plaintiff may avail himself of remedies in an ongoing
state criminal proceeding. 139 F.3d 80, 85, 86 n.3 (2d Cir. 1998). See also the Second
Circuit’s subsequent express approval of Wallace in Kaufman, 466 F.3d at 86.

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to Younger because of untimely state remedies. Instead, the case represents an
exception to abstention predicated on the bias of a state administrative
tribunal. In context, the quoted sentence reiterated that Younger
contemplated alternative mechanisms for raising federal claims in ongoing
state proceedings before a competent state tribunal. See id.; see also Juidice,
430 U.S. at 337, 97 S. Ct. at 1218 (“Appellees need be accorded only an
opportunity to fairly pursue their constitutional claims in the ongoing state
proceedings.” (citing Gibson)).
More to the point, neither the plaintiffs nor the district court nor
Judge Southwick cite a single case in which the alleged untimeliness of state
remedies rendered Younger abstention inapplicable. The reason for this
seems plain: Younger holds that “the cost, anxiety, and inconvenience of
having to defend against a single criminal prosecution” cannot amount to
irreparable injury. 401 U.S. at 46, 91 S. Ct. at 751. A few years after Gibson,
the Supreme Court clarified that state remedies are inadequate only where
“state law clearly bars the interposition of the constitutional claims.” Moore,
442 U.S. at 425–26, 99 S. Ct. 2379 (emphasis added); see also Pennzoil Co. v.
Texaco, Inc., 481 U.S. 1, 14, 107 S. Ct. 1519, 1528 (1987); J.B. ex rel. Hart v.
Valdez, 186 F.3d 1280, 1292 (10th Cir. 1999). Even more specifically, the
Court holds that arguments about delay and timeliness pertain not to the
adequacy of a state proceeding, but rather to “conventional claims of bad
faith,” a well-established exception to Younger abstention. Moore, 442 U.S.
at 432, 99 S. Ct. at 2382. Here, plaintiffs do not allege bad faith. And it bears
repeating that Texas state court procedures do not clearly bar the raising of
federal claims regarding bail because Texas requires that bail be set
individually in each case rather than on a mechanical, unalterable basis.
Tex. Code Crim. P. art. 17.15(a).
Plaintiffs’ broadside against all the available state remedies ultimately
rests on the incorrect assumption that each moment in erroneous pretrial

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detention is a constitutional violation. But this case does not present the
situation that arose in Gerstein, where preliminary detention could occur
without any judicial finding of probable cause and without legal recourse.
An order for cash bail accompanies a judicial determination of probable
cause, which means that the defendant has presumably violated the criminal
law. At that point, the question becomes how to balance the interests of the
defendant in being released pending trial against society’s need to enforce the
law, protect innocent citizens, and secure attendance at court proceedings.
See, e.g., Tex. Code Crim. P. art. 17.15(a). Certainly, any kind of error
in assessing excessive bail is lamentable, whether it pertains to the
defendant’s criminal history, the nature of the instant charge, the protection
of potential victims, or his ability to pay cash bail. Even more unfortunate is
the plight of a person unconstitutionally convicted who remains incarcerated
pending the outcome of appeal or postconviction remedies; yet that is
precisely what Younger held despite the “untimeliness” of the state criminal
process. The gist of Younger’s test for availability, however, lies in the fact
that errors can be rectified according to state law, not that they must be
rectified virtually immediately.
2. Mootness
The preceding discussion suffices to explain why federal courts must
abstain from invoking equity to interfere with ongoing state criminal
proceedings where plaintiffs have adequate opportunities to raise
constitutional issues. A coequal ground for dismissing this case is mootness.
The substantial changes made by the Texas legislature to procedures for
assessing bail have been outlined above. S.B. 6 was enacted after the initial
panel decision in this case and pending our en banc review. Referencing these
changes on remand from the en banc court, the district court analyzed
mootness as follows:

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There is more than one way to ensure that a bail system
upholds due process rights. Texas has chosen its way, and
Plaintiffs are not entitled to have this Court immediately
intervene to tinker with the rules that the Legislature has just
recently enacted. Accordingly, the Court holds that Plaintiffs’
request for injunctive relief should be dismissed as moot.
Accord [13C Wright & Miller], Federal Practice
and Procedure [§ 3533.6], at Supp. 73 (“A challenge to
the validity of a new enactment, however, may be deferred to
later litigation when the new enactment is amended while an
appeal is pending and the record does not support adjudication
as to the new enactment.”) (citing Am. Charities for Reas. Fund.
Reg., Inc. v. O’Bannon, 909 F.3d 329, 332–34 (10th Cir.
2018)).37
We substantially agree with the district court’s analysis and add in
support our previous en banc decision in Pugh v. Rainwater, 572 F.2d 1053
(5th Cir. 1978) (en banc). Like this case, Pugh addressed new bail legislation
in Florida enacted during the pendency of the case on appeal. A panel of the
Fifth Circuit held the new bail rules unconstitutional as “wealth-based”
“discrimination.” Pugh v. Rainwater, 557 F.2d 1189, 1198, 1201–02 (5th Cir.
1977), reversed en banc, 572 F.2d 1053 (5th Cir. 1978). The en banc court
found the new law not facially unconstitutional and dismissed the case for
mootness. The court considered plaintiffs’ arguments against the operation
of state bail procedures to be an as-applied challenge. But the evidence
supporting that claim predated the new law. Consequently, “[a]s an attack
on the Florida procedures which existed as of the time of trial, the case has
lost its character as a present, live controversy and is therefore moot.”

37
The Tenth Circuit opinion states: “The law materially changed, fundamentally
altering the issues that had been presented in district court. This change in the law renders
the appeal moot.” O’Bannon, 909 F.3d at 332–34.

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Pugh, 572 F.2d at 1058.
We are not bound by Pugh, but the resolution of that identical dispute
is compelling. To rule on the status of S.B. 6 and its procedures at this point,
based on evidence largely generated during proceedings that occurred pre-
amendment, would constitute no more than an advisory opinion. Under
Article III of the Constitution, federal courts may adjudicate only “actual,
ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317, 108 S. Ct. 592, 601
(1988). That the named plaintiffs have not been subject to bail proceedings
since years before the advent of S.B. 6 calls into question their ability to
pursue this litigation for ongoing injunctive relief as injured parties, much
less class representatives. And although the plaintiffs submitted some kind
of video evidence purporting to demonstrate deficient proceedings in the
immediate wake of the new law, we agree with the district court’s statement
that “there is minimal evidence in the record reflecting what actually
happens in Dallas County after the effective date of S.B. 6.” In sum, the case
is moot because “the issues presented are no longer ‘live’ or the parties lack
a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc.,
568 U.S. 85, 91, 133 S. Ct. 726 (2013) (internal quotation omitted). Thus,
even if federal courts were not compelled by Younger and O’Shea to abstain,
the present controversy must be considered moot.
Plaintiffs challenge mootness in light of two Supreme Court cases.
Neither is helpful to plaintiffs. One of these stated that a change in the law
during litigation does not moot a claim unless it “completely and irrevocably
eradicated the effects of the alleged violation.” Los Angeles Cnty. v. Davis,
440 U.S. 625, 631, 99 S. Ct. 1379, 1383 (1979). Davis recited the importance
of completely eradicating the “effects of the alleged violation” where the
question was mootness owing to the city’s voluntary cessation of racially
discriminatory practices. As a general rule, voluntary cessation of illegal
practices does not render a case moot. See id. On the facts before it, the

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Court held that the case had become moot under the high standard for
voluntary cessation. Voluntary cessation is not involved here. More
recently, the Supreme Court disclaimed mootness unless the new law affords
plaintiffs “the precise relief . . . requested in the prayer for relief in their
complaint.” New York State Rifle & Pistol Ass’n v. City of New York,
140 S. Ct. 1525, 1526 (2020) (per curiam). That case actually favors the
defendants, as it held that the controversy before the Supreme Court became
moot due to New York City’s amendment of its ordinance “[a]fter we
granted certiorari.” Id. This suggests that this court was exactly right in
Pugh.38
According to the plaintiffs, their complaint is not moot because it is
essentially unrelated to the changes made by the Texas legislature. Dallas
County’s bail practices allegedly remain unconstitutional irrespective of
S.B. 6 and irrespective of the existence of bail schedules. Plaintiffs argue that
they seek relief “beyond what ODonnell held to be required,” such that the
legislature’s adoption of measures originally required by ODonnell fails to
assuage their demands for on-the-record hearings and detailed factfindings
that prove in each bail proceeding whether pretrial “detention is necessary
to further any state interest.” This argument is incoherent. The overhaul
accomplished by S.B. 6 specifically requires, within 48 hours of arrest, a bail
decision reflecting individual consideration of the relevant Article 17.15(a)
statutory factors and “impos[ition of] the least restrictive conditions” that
will “reasonably ensure the defendant’s appearance in court as required and
the safety of the community, law enforcement, and the victim of the alleged

38
Plaintiffs’ attempt to shoehorn Pugh within these two cases is quite misguided.
They assert that the Pugh en banc court held that “a new state rule cured the alleged
violations and there was no evidence that the challenged conduct persisted.” As we
explained above, Pugh did no such thing in simply holding the new law facially
constitutional and declaring any further challenge to be moot.

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offense.” Tex. Code Crim. P. art. 17.028(a), (b).39 The crux of this case
is now whether the new state law, if applied assiduously by Dallas County
magistrates, measures up to plaintiffs’ proffered constitutional minima.40
S.B. 6 is heavily procedural in nature, just like the alleged claims of these
plaintiffs. Thus, both the provisions of S.B. 6 and their implementation are
alleged to raise constitutional issues beyond the scope of this case and the
circumstances of the plaintiffs who filed it. The case is moot.41
CONCLUSION
Exercising our discretion to review both justiciability issues following
remand, we hold that Younger v. Harris and its progeny required the district
court to abstain; that the ODonnell I decision to the contrary is overruled; and
that the case is moot by virtue of intervening state law.
We REMAND with instructions to DISMISS.

39
In setting the amount of bail, the magistrate must consider: (1) the “nature of the
offense”; (2) the detainee’s “ability to make bail”; (3) the “future safety of a victim of the
alleged offense, law enforcement, and the community”; (4) the detainee’s “criminal
history”; and (5) the detainee’s “citizenship status.” Tex. Code Crim. P.
art. 17.15(a).
40
If the Dallas County magistrates are not in compliance with state law, this raises
issues for state courts to resolve. Pursuant to Pennhurst State Sch. & Hosp. v. Halderman,
federal courts may not grant injunctive relief against the defendants on the basis of state
law. 465 U.S. 89, 106, 121, 124, 104 S. Ct. 900, 911, 919, 920 (1984).
41
Plaintiffs urge the court to vacate our previous en banc decision should the case
be deemed moot. In Daves (en banc), the court considered only threshold questions of
justiciability, rightly recognizing that “there is no mandatory sequencing of jurisdictional
issues.” Daves, 22 F.4th at 532 (quoting Sinochem, 549 U.S. at 431, 127 S. Ct. at 1191).
Here, we resolve additional threshold questions—those of abstention and mootness—
without reaching the merits. Vacatur of the previous en banc decision is unwarranted.

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Priscilla Richman, Chief Judge, concurring in the judgment:
I concur in the judgment holding that this case is moot in light of new
legislation passed by the Texas legislature. I would not reach whether
Younger abstention1 applies in the present case since the new statutory regime
now governs and there is no live case or controversy before this court that
requires us to determine whether pre-trial detainees in Texas had an avenue
under the former bail regime to present federal claims in challenges to bail
determinations and pre-trial detention.2
I cannot say, categorically, that Younger abstention will always be
required when a defendant brings federal claims challenging bail bond
procedures. If there is no adequate avenue under state law to challenge bail
procedures or pre-trial detentions on federal grounds, then the Younger
abstention doctrine would, in all likelihood, be inapplicable.3

1
Younger v. Harris, 401 U.S. 37 (1971).
2
See, e.g., Juidice v. Vail, 430 U.S. 327, 337 (1977) (holding that “it is abundantly
clear that appellees had an opportunity to present their federal claims in the state
proceedings. No more is required to invoke Younger abstention.” (footnote omitted)).
3
See, e.g., Gerstein v. Pugh, 420 U.S. 103, 106, 108 n.9 (1975) (holding that Younger
abstention did not apply because defendants were detained without a timely judicial
determination of probable cause and state courts had also “held that habeas corpus could
not be used, except perhaps in exceptional circumstances, to test the probable cause for
detention under an information”).

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Leslie H. Southwick, Circuit Judge, concurring in judgment:
I start with expressing admiration for the clarity and erudition of the
opinion for the court. Expected qualities for that author’s writings, certainly,
but worth noting. I differ with that opinion as to abstention, but I am able to
join the majority in dismissing the suit.
My agreement with the majority is with the analysis of mootness. The
Texas legislature’s adoption of new rules for addressing bail in trial courts
has entirely changed the relevant factual and legal underpinnings for the
dispute. If a federal district court is the proper venue for a challenge to those
procedures, it needs to be based on a new complaint in a new lawsuit.
Of course, the majority opinion also determined that challenges to bail
practices under the new enactment may not properly be pursued in federal
court. Abstention would block any decision. My view, though, is that we
cannot decide in the abstract whether abstention would apply to future claims
about bail. Specific claims made and facts shown will matter.
Preliminary to discussing abstention itself, I offer a word or two about
whether we should even address the issue. Our holding that claims against
Dallas County’s former bail practices are moot resolves this appeal. An
appeal that no longer contains a live controversy is an especially poor vehicle
for issuing a significant additional holding. Several members of the court
opine that we should leave the analysis of abstention for another day. In the
main, I agree. Nonetheless, with a majority of the court reaching the
abstention issue, then expressing a view that differs from my own, I hope
there is some benefit in offering a contrasting, even if solitary, analysis.
I. Abstention — some background
“Jurisdiction existing,” the Supreme Court explained, “a federal
court’s ‘obligation’ to hear and decide a case is ‘virtually unflagging.’”

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Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013) (quoting Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)).
The abstention doctrine identified in Younger v. Harris, 401 U.S. 37 (1971), is
an “exception to this general rule.” Id. It provides that in suits requesting
injunctive or declaratory interference with certain kinds of state adjudicatory
proceedings, federal courts generally must “refus[e] to decide a case in
deference to the States.” New Orleans Pub. Serv., Inc. v. Council of City of
New Orleans, 491 U.S. 350, 368 (1989).
As the majority opinion explains, Younger abstention was a fairly
quickly imposed limit on the expansiveness of a right to enjoin state
prosecutions that had been recognized just six years earlier in Dombrowski v.
Pfister, 380 U.S. 479 (1965). See 17B CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, ET AL., FED. PRAC. & PROC. § 4251, at 3 (3d ed. 2007). The
Dombrowski Court held that overbroad state statutes that criminalized
subversive activity had a chilling effect on the exercise of First Amendment
rights, and that an injunction should be granted blocking pending and future
prosecutions under the statutes. Dombrowski, 380 U.S. at 493–97. Younger
was a “major retreat” from Dombrowski. 17B WRIGHT & MILLER, FED.
PRAC. & PROC. § 4251, at 7.
The event that was a portent, at least to the discerning, that the
Supreme Court would sound retreat was the federal court injunction
obtained by John Harris and three other defendants barring Los Angeles
County District Attorney Evelle J. Younger from prosecuting them under a
statute the district court held was unconstitutional. Harris v. Younger, 281 F.
Supp. 507, 509–10, 516–17 (C.D. Cal. 1968) (citing Dombrowski and holding
the statute violated the First Amendment), rev’d, Younger, 401 U.S. 37. The
Supreme Court reversed, holding that principles of equity and comity
prohibited federal judicial interference with the ongoing state-court
prosecution. Younger, 401 U.S. at 43–44, 53–54. On equity, the Court

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adhered to “the basic doctrine of equity jurisprudence that courts of equity
should not act, and particularly should not act to restrain a criminal
prosecution, when the moving party has an adequate remedy at law and will
not suffer irreparable injury if denied equitable relief.” Id. at 43–44. On
comity, “an even more vital consideration,” the Court emphasized that the
need for “proper respect for state functions” counseled against interference
“with the legitimate activities of the States.” Id. at 44.
In time, the Court announced that abstention is appropriate if: (1) the
requested judicial relief would unduly interfere with the ongoing state
proceeding; (2) the state proceeding implicates an important state interest in
the subject-matter of the federal claim; and (3) the federal plaintiff has an
adequate opportunity to raise the federal claim in state court. Middlesex Cnty.
Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).
More recently in its unanimous 2013 Sprint opinion, the Court
summarized Younger abstention after 40 years. See Sprint, 571 U.S. 69. “The
Court made clear that the circumstances fitting within the Younger abstention
doctrine are exceptional and include: (1) state criminal prosecutions; (2) civil
enforcement proceedings; and (3) civil proceedings involving certain orders
that are uniquely in furtherance of the state courts’ ability to perform their
judicial functions.” 17B WRIGHT & MILLER, FED. PRAC. & PROC. § 4254
(Supp. 2022) (explaining Sprint, 571 U.S. at 69, 78). The Younger abstention
doctrine goes “no further” than those three proceedings. Sprint, 571 U.S. at
82. As to the three Middlesex factors, they are “not dispositive” but are
merely “additional factors appropriately considered by the federal court
before invoking Younger.” Id. at 81 (emphasis in original).
A gateway question for us is whether the Sprint Court’s category of
“state criminal prosecutions” includes preliminary proceedings such as
deciding on bail. One reason to say bail determinations are subject to

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abstention is the Court’s reasoning for applying Younger to some state civil
proceedings. The Court stated that Younger principles apply to state civil
proceedings “‘akin to a criminal prosecution’ in ‘important respects.’” Id.
at 79 (quoting Huffman v. Pursue, Ltd., 420 U.S. 592, 604 (1975)).
It could be argued that disruptions of state procedures regarding bail
are different only in degree from disruptions to the prosecution, and the state
interests are of similar weight. As the majority here puts it, the “mischief”
arising from detailed equitable relief that “fix[es] the time of, the nature of
and even the burden of proof in the evidentiary hearings . . . would permit a
pre-trial detainee who claimed that the order was not complied with to
proceed to the federal court for interpretations thereof.” Majority op. at 16–
17 (quoting Wallace v. Kern, 520 F.2d 400, 406 (2d Cir. 1975)). Supportive
of the majority’s view is the statement in one of the preeminent federal
procedure treatises that a federal court should abstain if relief “would intrude
on a state’s administration of justice, even in the absence of a particular,
individual, ongoing state proceeding.” 17A JAMES W. MOORE, ET AL.,
MOORE’S FED. CIV. PRAC. § 122.72[1][c], at 122-10 (Rev. 2022) (emphasis
added). If that phrasing accurately captures the doctrine, abstention
certainly could extend beyond the prosecution itself.
On the other hand, Dombrowski and Younger, though having much
different results, both address whether the unconstitutionality of a criminal
statute supporting a state prosecution can be presented in federal court.
Constitutional arguments can be presented in a prosecution and have the
potential to alter its result. Dombrowski held the prosecution could be blocked
before it even began if the criminal statute were unconstitutional, while
Younger said the constitutional arguments needed to be presented in the state
criminal proceedings. Certainly, Younger has been stretched beyond that, as
the majority opinion discusses, and so will I. Those extensions, though, are
more similar to criminal prosecutions than is the bail determination. In those

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extensions, the constitutional claims can be part of the principal proceedings
and will thwart those proceedings if accepted. Hence, abstention makes
sense at least at the level of not having duplicative forums for the same claims.
Rather differently, the validity of equal protection claims about bail
would not affect the validity of or intrude into the criminal prosecution. Even
so, depending on the complexity of the relief a court orders as to bail, the
courts that handle the prosecutions could be significantly burdened.
I conclude inconclusively. The applicability of Younger’s abstention
to bail proceedings has no clear answer. One reason I hesitate to agree with
the majority that the Younger analysis should be applied to bail proceedings
is that a clear purpose of Sprint was to stop abstention proliferation.
“Divorced from their quasi-criminal context,” the Court wrote, “the three
Middlesex conditions would extend Younger to virtually all parallel state and
federal proceedings, at least where a party could identify a plausibly
important state interest.” Sprint, 571 U.S. at 81. That must not occur,
because “abstention from the exercise of federal jurisdiction is the
‘exception, not the rule.’” Id. at 81–82 (quoting Hawaii Housing Authority v.
Midkiff, 467 U.S. 229, 236 (1984)). Certainly, Sprint did not announce that
Younger was dying. Instead, the Court was saying Younger had gotten older;
its reach had fully matured; it should not be given more tasks.
For me, then, whether abstention could apply here turns on whether
bail decisions are in Sprint’s category of “criminal prosecutions.” In order
to engage with the majority and show how my analysis differs, I assume for
purposes of this case that abstention is not categorically inapplicable to bail
proceedings. I start with the assumption that bail proceedings are
“exceptional circumstances.” Abstention still must be justified by the
“additional factors appropriately considered by the federal court before
invoking Younger.” Sprint, 571 U.S. at 81 (emphasis in original). The Sprint

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Court stated that these factors are not “dispositive,” id., but absent some
significant overriding factual or legal considerations in the case, I treat them
as guiding the result.
In the following analysis, whether abstention applies here turns on two
of the Middlesex factors.1 First, would injunctive or other relief from the
federal court impermissibly interfere with ongoing state-court proceedings?
Middlesex, 457 U.S. at 431–32, 437. Further, “is there an adequate
opportunity in the state proceedings to raise constitutional challenges”? Id.
at 432. My separate analysis of each factor follows.
II. Impermissible interference with ongoing state proceedings
“Our Federalism” is the rubric Justice Hugo Black used for Younger
abstention. Younger, 401 U.S. at 44. We must avoid both “blind deference”
to states and “centralization of control over every important issue.” Id.
Even though the Younger doctrine has expanded since its 1971 origin,
federalism remains key.
As I begin, I request forbearance. My effort to explain some of the
caselaw requires me to detail what those cases actually involved and, thus,
how to interpret their wording. Though I seek to give context without
overburdening, the direction I am willing to err will become obvious.
One case that began in the Fifth Circuit, with multiple opinions
including one from the Supreme Court and one from our en banc court, is a
good source for early and still applicable analysis of prohibited interference
with state courts. See, e.g., Gerstein v. Pugh, 420 U.S. 103 (1975); Pugh v.

1
I will not discuss whether the proceedings involve important state interests, as the
state’s interests in its own bail proceedings are certainly substantial.

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Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en banc).2 The case led to one of
the earliest Supreme Court opinions rejecting Younger abstention. The case
began as a class-action challenge in the former, six-state Fifth Circuit that had
Florida within its boundaries. The named plaintiffs were arrested and
detained in Dade County, Florida, based solely on a prosecutor’s
information3 charging them with offenses. The lead plaintiff was Robert
Pugh, jailed at the time of the complaint on an information charging him with
robbery and other offenses. Gerstein v. Pugh, 420 U.S. at 105 n.1.
One defendant was Richard Gerstein, the State Attorney (i.e., chief
prosecutor) for the judicial circuit containing Miami and Dade County. Id.
at 107. Gerstein had statutory authority to file an information against those
alleged to have committed a crime under state law, leading to a suspect’s
detention based on Gerstein’s own, unreviewed determination about
probable cause. Id. at 105–06. Plaintiffs asserted that Gerstein’s policy was
“to refuse to provide a defendant in custody by virtue of a directly filed
information an opportunity for a binding preliminary hearing to determine
probable cause for his incarceration.” Complaint at 28, Pugh v. Rainwater,

2
I offer an explanation about shortform case names used in my opinion. In
following what I consider to be the proper convention, the usual one-party names for some
opinions are spurned. I believe proper practice is not to use the name of the governmental
official. For example, multiple opinions arose from litigation brought by plaintiff Robert
Pugh after he was detained in Dade County jail. Gerstein v. Pugh, 420 U.S. at 105–06.
Defendant Richard E. Gerstein was the State Attorney for Dade County, Florida, id. at 107,
while James Rainwater was one of three defendant Small Claims Court judges. See
Complaint at 2–4, Pugh v. Rainwater, No. 71-CV-448 (S.D. Fla. Mar. 22, 1971), in Appendix
filed with Petitioner’s Brief after grant of Writ of Certiorari, Gerstein v. Pugh, 420 U.S. 103
(No. 73-477). Thus, Pugh is my shortform. In order to combine the exigencies of reader
clarity with the eccentricities of writer preference, I will refer to both parties when rejecting
a standard shortform for a case. Yet, I do not wish to be ridiculous. The governmental
party was Younger, the private party Harris, but I refer to that case as Younger.
3
“Information. A formal criminal charge made by a prosecutor without a grand-
jury indictment.” BLACK’S LAW DICTIONARY 795 (8th ed. 2004).

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supra n.2. The relief sought against Gerstein included a declaratory judgment
that a prompt probable-cause hearing was constitutionally necessary, and an
injunction requiring such hearings. Id. at 11–13.4 Prosecutor Gerstein’s part
of the case would be considered by the Supreme Court.
Relief was also sought against eight state-court judges. Id. at 4. Three
were Small Claims Court judges, James Rainwater being the first named. Id.
The other five were Justices of the Peace. Id. Plaintiffs asserted that the eight
judges unconstitutionally set monetary bail for all arrestees, regardless of the
arrestee’s ability to pay. Id. at 10. The plaintiffs alleged that the practice
“discriminates against poor persons solely because of their poverty without
any rational basis,” in violation of the Equal Protection Clause of the
Fourteenth Amendment. Id. On that claim, the plaintiffs requested a
declaratory judgment that secured money bail for indigent arrestees was
discrimination under the Fourteenth Amendment, and an injunction
prohibiting the use of monetary bail in this manner. Id. at 13. The Supreme
Court did not consider the Rainwater bail issues.
The district court ruled for the plaintiffs on the probable-cause issue
but for the defendants on the bail issue. Pugh v. Rainwater, 332 F. Supp. 1107,
1115 (S.D. Fla. 1971). That decision led to separate appeals to this court. In
the probable-cause appeal, we upheld the district court’s injunction and
declined to abstain. Pugh v. Rainwater, 483 F.2d 778 (5th Cir. 1973). State
Attorney Gerstein then petitioned the Supreme Court for a writ of certiorari;
we held the issue of bail in abeyance. With some modifications to the Fifth

4
The complaint also alleged that the defendant judges had authority to provide
preliminary hearings but would not do so for “persons incarcerated in the Dade County Jail
by virtue of a direct information filed by defendant Gerstein.” Id. at 4, 7–8.

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Circuit decision, the Supreme Court affirmed and remanded for further
proceedings. Gerstein v. Pugh, 420 U.S. at 126.
The Gerstein v. Pugh Court’s discussion of Younger was relegated to a
footnote; there, the Court rejected abstention:
The District Court correctly held that respondents’ claim for
relief was not barred by the equitable restrictions on federal
intervention in state prosecutions, Younger v. Harris, 401 U.S.
37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The injunction was not
directed at the state prosecutions as such, but only at the
legality of pretrial detention without a judicial hearing, an issue
that could not be raised in defense of the criminal prosecution.
The order to hold preliminary hearings could not prejudice the
conduct of the trial on the merits.
Id. at 108 n.9. This language certainly supports that Younger is inapplicable
to bail. Even so, a legal doctrine can evolve from its original terms.
Because the Supreme Court stated the district court “correctly held”
that the claims were not barred by Younger, I examine the district court’s
holding. The district court quoted Younger as permitting an injunction when
there is “‘great and immediate’ ‘irreparable injury’ other than the ‘cost,
anxiety, and inconvenience of having to defend against a single criminal
prosecution,’ and the injury must be one that cannot be eliminated by the
defense therein.” Pugh v. Rainwater, 332 F. Supp. at 1111 (quoting Younger,
401 U.S. at 46). This is the district court’s description of Pugh’s injury:
Plaintiffs at bar are challenging the validity of their
imprisonment pending trial with no judicial determination of
probable cause. These facts present an injury which is both
great and immediate and which goes beyond cost, anxiety, and
inconvenience. Furthermore, the state has consistently denied
the right asserted, so that the injury is irreparable in that it
cannot be eliminated either by the defense to the prosecution
or by another state proceeding.

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Id.
The district court’s correct understanding of Younger was that injury
arising from being detained without a probable cause hearing cannot be
dismissed as simply the “cost, anxiety, and inconvenience” of a criminal
prosecution. Id. Generally, a prosecution does not violate someone’s
constitutional rights even when the result is an acquittal. Cost, anxiety, and
inconvenience are inherent in being prosecuted for a crime. Gerstein v. Pugh,
though, supports that detention without any judicial determination that there
is probable cause causes an injury that is not inherent, and indeed is
abhorrent, to our criminal justice system. The Court elaborated in 1979 by
stating that “the injunction [in Gerstein v. Pugh] was not addressed to a state
proceeding and therefore would not interfere with the criminal prosecutions
themselves.” Moore v. Sims, 442 U.S. 415, 431 (1979). More on Sims later.
After the Supreme Court’s Pugh opinion but before this court made
its final decision as to the bail portion of the suit, the Florida Supreme Court
promulgated a new rule concerning bail. See Pugh v. Rainwater, 557 F.2d
1189, 1194, 1200–01 (5th Cir. 1977). After a panel decision, we reheard the
bail issue en banc. See Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978) (en
banc). The en banc court held that the plaintiffs’ original bail challenge was
mooted by the new Florida rule. Id. at 1058. We then held that the new
Florida rule was not facially unconstitutional. Id. at 1059. We explained that
the automatic detention of indigent arrestees “without meaningful
consideration of other possible alternatives” would violate the Fourteenth
Amendment, but that the new Florida rule did not facially preclude
meaningful consideration. Id. at 1057–59. The en banc opinion remains valid
that indigents’ constitutional rights can be violated by bail decisions.
We did not discuss Younger in the panel or en banc Pugh v. Rainwater
opinions as to bail following the Supreme Court’s Gerstein v. Pugh opinion

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concerning probable-cause determinations. Reasons for the failures can be
proposed now, but I conclude that silence should be accepted as our court’s
last word in the Pugh collection of opinions on Younger.
I have discussed the series of Pugh decisions first because of the
litigation’s origins in this circuit and the importance of the decisions to our
subsequent jurisprudence. The lodestar precedent for the majority here,
though, is a decision three years after Younger, namely, O’Shea v. Littleton,
414 U.S. 488 (1974).5 Plaintiffs were 17 black and two white residents of
Cairo, Illinois, and its surrounding county; they were not detainees. Id. at
491. They brought a class action to challenge alleged racial discrimination in
the setting of bail, imposing of fines, and sentencing in a municipal court
system. Id. at 490–91. The Seventh Circuit gave substantial detail about their
claims and categorized them by groups of defendants such as the local
prosecutor Berbling, magistrate judge O’Shea, trial judge Spomer, and the
prosecutor’s investigator Shepherd. Littleton v. Berbling, 468 F.2d 389, 392–
93 (7th Cir. 1972). Claims against the prosecutor included discriminating
against black arrestees in multiple ways, while those against the investigator
were conspiring with the prosecutor to discriminate. Id.
Importantly for us, the claims against the judges were broad, including
their use of a bond schedule that did not consider the individual defendant:
Spomer and O’Shea, as judges, engage in a pattern and practice
of discriminatory conduct based on race as follows: They set
bond in criminal cases by following an unofficial bond schedule
without regard to the facts of a case or circumstances of an
individual defendant. They sentence black persons to longer
criminal terms and impose harsher conditions than they do for

5
Yet again, I will apply my convention to this opinion and use plaintiff Littleton’s
name as the shortform, not the governmental defendant Judge O’Shea’s.

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white persons who are charged with the same or equivalent
conduct. They require plaintiffs and members of their class,
when charged with violations of city ordinances which carry
fines and possible jail penalties, if the fine cannot be paid, to
pay for a trial by jury.
Id. at 393.
The Seventh Circuit reversed the district court’s dismissal of the suit
and gave guidance on potential remedies:
Obviously, since this case is before us on a motion to dismiss,
it would be improper for us to attempt to spell out in detail any
relief the district court might grant if the plaintiffs can prove
what they allege. Nevertheless, as this appears to be a case of
first impression as to the type of relief approved, we feel
obligated to give the district court some guidelines as to what
type of remedy might be imposed. We do not mean to require the
district court to sit in constant, day-to-day supervision of either state
court judges or the State’s attorney. An initial decree might set
out the general tone of rights to be protected and require only
periodic reports of various types of aggregate data on actions on bail
and sentencing and dispositions of complaints.
Id. at 414–15 (footnotes omitted; emphasis added). The italicized statement
about periodic reports was quoted disapprovingly by the Supreme Court
when it reversed. See Littleton, 414 U.S. at 493 n.1.
The Seventh Circuit’s allowing a federal court to get periodic reports
and then to inject itself even further into the operation of local criminal courts
was central to the Supreme Court’s reversal. The plaintiffs had requested
“an injunction aimed at controlling or preventing the occurrence of specific
events that might take place in the course of future state criminal trials.” Id.
at 500. “An injunction of the type contemplated by respondents and the
Court of Appeals would disrupt the normal course of proceedings in the state
courts via resort to the federal suit for determination of the claim ab initio.”

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Id. at 501. Such an injunction “would require for its enforcement the
continuous supervision by the federal court over the conduct of the
petitioners in the course of future criminal trial proceedings involving any of
the members of the respondents’ broadly defined class.” Id.
My difference with the majority on what to make of the combination
in Littleton of extravagantly broad intrusion into state court functions, and
the fact that one of the intrusions concerned bail, is mirrored in different
views expressed by other circuit courts. The First Circuit distinguished
Littleton as involving “continuing federal judicial supervision of local
criminal procedures” and found no Younger barrier in its case because the
plaintiff’s “challenge to pretrial detention procedures could not be raised as
a defense at trial.” Fernandez v. Trias Monge, 584 F.2d 848, 851 n.2, 853 (1st
Cir. 1978). The Ninth Circuit distinguished the broad relief sought in
Littleton from an exclusive challenge to bail procedures. See Arevalo v.
Hennessy, 882 F.3d 763, 766 n.2 (9th Cir. 2018). It concluded that abstention
would be inappropriate when the claims solely concern bail. Id. at 766. The
Eleventh Circuit reached a similar conclusion in a decision I will discuss in
more detail later. See Walker v. City of Calhoun, 901 F.3d 1245, 1254–55 (11th
Cir. 2018). For now, I state only that I largely agree with Walker.
The Fifth Circuit stated a different view of Littleton from that of the
just-cited opinions. See Tarter v. Hury, 646 F.2d 1010 (5th Cir. Unit A June
1981). After describing abstention in O’Shea v. Littleton, we held: “Because
O’Shea involved a challenge to the imposition of excessive bail, it is
conclusive as to Tarter’s claim for equitable relief based on that ground.” Id.
at 1013. With trepidation, I am bold to say I disagree with that opinion’s
author, one of the ablest of judges ever on this court, John Minor Wisdom.
Of course, I have already been worrisomely bold by disagreeing with able
current colleagues. Tarter seems to mean that abstention categorically

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applies to claims about bail in state court. Even if it does, Judge Wisdom
detailed a narrower understanding of Littleton:
The plaintiffs sought declaratory and injunctive relief. The
Supreme Court held that dismissal of those claims was
appropriate because the granting of such equitable relief would
require excessive federal interference in the operation of state
criminal courts. The enforcement of any remedial order
granting the relief requested would require federal courts to
interrupt state proceedings to adjudicate allegations of asserted
non-compliance with the order.
Id. at 1013. That quotation supports that the claims were dismissed not
simply because they dealt with bail but because of how they dealt with bail.
Though I have acknowledged what is contrary to my views about
Tarter, I close with what I find quite accurate. After resolving the claim about
bail, the court stated that a different request for relief — “an injunction
requiring clerks to file all pro se motions [—] would not require the same sort
of interruption of state criminal processes that an injunction against excessive
bail would entail.” Id. Here, Judge Wisdom made a fact-based analysis and
found certain relief would not be improperly intrusive. In my view, that also
should have been the form of analysis applied to bail.
Another opinion that the majority here embraces is one in which the
Second Circuit abstained. See Wallace v. Kern, 520 F.2d 400 (2d Cir. 1975).
That court held that abstention was rejected in Gerstein v. Pugh because the
plaintiffs had no opportunity to raise their federal claims in the state-court
system, whether directly or collaterally. Id. at 407. Collateral opportunities
to present federal claims such as in state habeas, the court stated, provide
adequate opportunities for abstention purposes. Id. at 406–07.
Because of the importance the majority here gives to the Wallace
opinion, I will analyze it in detail. The claims in that suit by indigent pretrial

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detainees in a Brooklyn jail were extensive: legal aid attorneys had staggering
caseloads they could not possibly handle; plaintiffs’ speedy trial rights were
denied by lengthy delays; “bail [was] denied where no imposition of money
conditions [was] reasonably necessary”; lengthy pretrial detention caused
loss of employment and other harms; and several other claims concerning the
effects of delay. Wallace v. McDonald, 369 F. Supp. 180, 184 (E.D.N.Y.
1973).6 District Judge Orrin Judd, in a series of decisions, generally accepted
each of the plaintiffs’ claims. In a slightly later series of decisions, the Second
Circuit reversed them all, one by one.7
The Second Circuit summarized this history in its third opinion:
In Wallace I, Judge Judd had granted an application for a
preliminary injunction against the Legal Aid Society’s
acceptance of any additional felony cases in the Kings County
Supreme Court if the average caseload of its attorneys

6
The lead defendant was Miles F. McDonald; he was dismissed from the case
because he had retired as a trial judge before suit was even filed. Wallace v. McDonald, No.
72-C-898 (E.D.N.Y. Feb. 27, 1973), at *16, *18-19 (the published opinion cited in the text
redacted these details). The full 1973 opinion and a 1975 unpublished opinion I cite later
are no longer in the district court records. They were provided by Sarah Wharton of the
Harvard Law School Library after being located in Historical & Special Collections; Orrin
Grimmell Judd papers; Opinions & Speeches, Sept. 1972–July 1973, and Aug. 1974–Aug.
1975. A Fifth Circuit librarian, Judy McClendon, was the intermediary. My thanks to both.
Justice Michael Kern was the lead defendant in subsequent opinions.
7
Judge Judd’s boldness more generally is shown by his order of July 25, 1973, two
months after his first Wallace injunction, enjoining the Secretary of Defense from
conducting combat operations in Cambodia, Vietnam, and Laos. See Holtzman v.
Schlesinger, 361 F. Supp 553, 565–66 (E.D.N.Y. 1973). On July 27, the Second Circuit
stayed the injunction; on August 1, the Second Circuit Justice, Thurgood Marshall, refused
to vacate the stay; heedless, on August 3, Justice William Douglas vacated the stay; and on
August 4, the full Court stayed the injunction. See Holtzman v. Schlesinger, 414 U.S. 1304,
1304–05, 1316, 1321 (1973). On August 8, the Second Circuit reversed and ordered
dismissal. Holtzman v. Schlesinger, 484 F.2d 1307, 1314–15 (2d Cir. 1973). A lot happened
fast, but the Supreme Court’s message to all judges (and to Justice Douglas, too) was —
stay in your lane. How that obligation applies to bail is the central issue before us.

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exceeded 40. The district court also had ordered the Clerk of
the Criminal Term of the Kings County Supreme Court to
place on the calendar all pro se motions filed by inmates of the
Brooklyn House of Detention.
Wallace v. Kern, 520 F.2d at 401 (summarizing Wallace v. Kern, 392 F. Supp.
834 (E.D.N.Y. 1973), rev’d, 481 F.2d 621 (2d Cir. 1973)) (Wallace I). The
circuit court was so insistent about vacating the injunction that its opinion
was delivered from the bench after argument. See Wallace I, 481 F.2d at 622.
The court did not cite Younger, indeed, it cited only one precedent, but it did
say that “under the principle known as comity a federal district court has no
power to intervene in the internal procedures of the state courts.” Id.
The circuit court in 1975 described the second rejected order this way:
In Wallace II, Judge Judd had granted an application for a
preliminary injunction ordering that each detainee held for trial
for more than six months be allowed to demand a trial and be
released on his own recognizance if not brought to trial within
45 days of his demand. This court reversed on the ground that
questions concerning the right to a speedy trial are properly to
be determined on a case-by-case basis rather than by a broad
and sweeping order.
Wallace, 520 F.2d at 401 (summarizing Wallace v. Kern, 371 F. Supp. 1384
(E.D.N.Y. 1974), rev’d, 499 F.2d 1345 (2d Cir. 1974)) (Wallace II). “Relief
from unconstitutional delays in criminal trials is not available in wholesale
lots,” the court stated. Wallace II, 499 F.2d at 1351. Younger was not cited.
Finally, Wallace III dealt with bail. The relief ordered was extensive,
including time limits for bail determinations, granting a right to an
evidentiary hearing, and requiring consideration of other forms of release:
Judge Judd ordered that an evidentiary hearing be had on
demand at any time after 72 hours from the original
arraignment and whenever new evidence or changes in facts

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may justify. At the hearing, the People would be required to
present evidence of the need for monetary bail and the reasons
why alternate forms of release would not assure the
defendant’s return for trial, and the defendant would be
permitted to present evidence showing why monetary bail
would be unnecessary. The defendant was also held to be
entitled to a written statement of the judge’s reasons for
denying or fixing bail.
Wallace v. Kern, 520 F.2d at 403 (Wallace III) (summarizing and reversing
Wallace v. Kern, No. 72-C-898 (E.D.N.Y. Feb. 14, 1975)).
The Wallace III opinion accurately equated the Wallace injunction to
the remedy in Littleton of having periodic reporting to the federal court on
state court proceedings. The Wallace district court had “provided for new
bail hearing procedures which fix the time of, the nature of and even the
burden of proof in the evidentiary hearings.” Id. at 406. That “order would
permit a pre-trial detainee who claimed that the order was not complied with
to proceed to the federal court for interpretations thereof.” Id. The
similarities to Littleton are highlighted by the fact the Wallace district court
cited the not-yet-reversed Seventh Circuit Littleton opinion four times to
justify refusing to dismiss the suit, then the Second Circuit’s Wallace III
opinion cited the Supreme Court’s Littleton opinion eight times when it
reversed the district court. See Wallace v. McDonald, 369 F. Supp. at 186–87
(citing Littleton v. Berbling, 468 F.2d 389); Wallace III, 520 F.2d at 404–08
(citing O’Shea v. Littleton, 414 U.S. 488).
The Wallace III court interpreted Littleton to invalidate the
restrictions on state court bail procedures imposed by the district court
because they were an “ongoing federal audit of state criminal proceedings.”
Id. at 405–06 (quoting Littleton, 414 U.S. at 500). Indeed, the district court’s
“order created an intrusion upon existing state criminal process which is
fissiparous and gratuitous and it further ignored the prior rulings of this court

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on appeals in this case.” Id. at 408. My vocabulary is not as extensive as that
court’s, but the obvious point is that the district court order was overly
intrusive. The district court had rejected abstention, though, because
“[i]mproper pre-trial confinement would not be an issue on a defendant’s
trial on the criminal charge.” Wallace, No. 72-C-898 (Feb. 14, 1975), at *62.
The Wallace III opinion distinguished Gerstein v. Pugh, which had
rejected abstention in the (in)famous footnote 9. Wallace III, 520 F.2d at
406–07. To remind, that footnote relied on the absence of a direct challenge
to any specific prosecution and the fact the claims were only about “the
legality of pretrial detention without a judicial hearing, an issue that could not
be raised in defense of the criminal prosecution.” Gerstein v. Pugh, 420 U.S.
at 108 n.9. The Wallace III court determined that in the context of the Florida
procedures at issue, the Supreme Court was implicitly relying on its
statement earlier in its opinion that no adequate procedures were available
under state law to contest the absence of a judicial determination of probable
cause. Wallace III, 520 F.2d at 406.
I doubt, though, that the Supreme Court in 1975 was incorporating by
reference some implied factual limitation to its statement. Footnote 9 makes
no hint of such reliance — to my eyes at least. It is a categorical statement,
not qualified by earlier detailed factual background. I will discuss in the final
section of this opinion how I would apply the factor of whether adequate
procedures exist under Texas law in our case. Taken literally, the footnote
means abstention does not apply to pretrial bail. I have conceded for
purposes of analyzing Younger here that the force of the footnote has waned.
In summary, the three Wallace decisions from the Second Circuit are
the seriatim equivalent of what the Supreme Court in Littleton dealt with in
one decision. The Wallace district court entered orders that controlled how
Legal Services would operate, including the number of cases individual

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attorneys could be assigned; controlled the court’s pro se docket; required
detainees to be tried or released on their own recognizance if not timely
brought to trial after a demand; and, most relevantly to us, required prompt
evidentiary bail hearings, with the government needing to substantiate
imposing bail as opposed to alternative release conditions and the court
having to give written reasons for it decision. Id. at 401–03. This was a
wholesale federal intrusion into the operation of state criminal prosecutions.
The fact that some of the intrusion is pretrial, such as regarding bail, did not
remove the considerations for abstention.
My key point, after all this discussion of the Wallace opinions, is that
the intrusion into “the domain of the state,” id. at 408, was indeed severe,
not just as to bail but for the entire range of measures the district court
imposed. What I see absent from the Supreme Court decisions and from the
Wallace opinions is that if bail is involved, the Middlesex factor of undue
interference with ongoing state proceeding is always satisfied. (Ironically, a
fair interpretation of Gerstein v. Pugh footnote 9 is that this factor is never
satisfied as to bail.) Instead, it is necessary to examine just what the plaintiffs
are seeking as to bail. I accept the phrasing of some learned commentary that,
under Littleton, it is proper to “rely on a fact-intensive evaluation of how state
courts conduct their business and whether the federal exercise of jurisdiction
would constitute an ongoing intrusion into the state’s administration of
justice.” 17A MOORE’S FED. PRAC., § 122.72[1][c], at 122–107. We must
focus on how a federal court is asked to exercise its jurisdiction as a fact-based
issue. There is not a categorical answer just because bail is involved.
I give brief attention to the recent decisions from our court regarding
injunctive relief governing bail in another large Texas county, the one
containing the city of Houston. See, e.g., ODonnell v. Harris Cnty., 892 F.3d
147 (5th Cir. 2018). The majority opinion here overrules ODonnell. The

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extent of injunctive relief granted there was arguably too similar to what the
Supreme Court rejected in O’Shea v. Littleton.
Finally, I review an opinion with which I mostly agree. See Walker,
901 F.3d at 1255. Ninth Circuit Judge O’Scannlain, sitting by designation in
the Eleventh Circuit, analyzed whether a federal court could enjoin a Georgia
city’s “policy of using a secured-money bail schedule with bond amounts
based on the fine an arrestee could expect to pay if found guilty, plus
applicable fees.” Id. at 1252. I start with a mild disagreement. The court
wrote that Younger abstention is now “disfavored.” Id. at 1254 (citing Sprint,
571 U.S. at 77–78). It is true that Sprint sought to halt the expansion of
Younger’s reach. See Sprint, 571 U.S. at 81 (stating that misapplying the
“three Middlesex conditions would extend Younger to virtually all parallel
state and federal proceedings”). Instead of indicating disfavor, I find Sprint
simply announced that the doctrine was now fully defined.8
I return to Walker. The court implied that footnote 9 in Gerstein v.
Pugh should be taken on its own terms: abstention “does not readily apply
here because Walker is not asking to enjoin any prosecution. Rather, he
merely seeks prompt bail determinations for himself and his fellow class
members.” Walker, 901 F.3d at 1254 (citing Gerstein v. Pugh, 420 U.S. 103).
The Walker court concluded that Littleton required abstention when broad

8
The Wright & Miller treatise described Sprint as a “clarification”:
The Court clarified the meaning of the Middlesex and Dayton Christian Schools cases
in 2013 in Sprint Communications, Inc. v. Jacobs. The Court made clear that the
circumstances fitting within the Younger abstention doctrine are exceptional and
include: (1) state criminal prosecutions; (2) civil enforcement proceedings; and (3)
civil proceedings involving certain orders that are uniquely in furtherance of the state
courts’ ability to perform their judicial functions.
17B WRIGHT & MILLER § 4254, at 79 & n.21 (Supp. 2022).

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relief was sought that “amounted to ‘an ongoing federal audit of state
criminal proceedings.” Id. at 1254–55 (quoting Littleton, 414 U.S. at 500).
Much less was being sought in Walker:
Instead, as in Gerstein, Walker merely asks for a prompt pretrial
determination of a distinct issue, which will not interfere with
subsequent prosecution. At the very least, the district court
could reasonably find that the relief Walker seeks is not
sufficiently intrusive to implicate Younger. Because we review
a Younger abstention decision for abuse of discretion, we are
satisfied that the district court was not required to abstain.
Id. at 1255 (citation omitted).
Charting that analysis, I conclude the Walker court found the plaintiffs
were not seeking nearly as broad of relief as in Littleton, that the resulting
potential intrusion on state procedures was not severe, and that without
considering adequacy of other remedies or the significance of the state’s
interest, that the district court did not abuse its discretion by deciding the
merits of the claims. Id. at 1256–57. The Walker court never held that
abstention was categorially inapplicable, but the considerations I have
highlighted allowed the claims to be resolved in that case.
Though the court addressed only the interference factor, Sprint stated
that the three Middlesex factors are not dispositive but are “appropriately
considered by the federal court before invoking Younger.” Sprint, 571 U.S.
at 81. Further, the key justification for Younger abstention, i.e., Our
Federalism, is to allow state courts to function without federal court
oversight absent exceptional circumstances. Once the Walker court
concluded there was no interference, the federalism concerns were satisfied.
Equally significant is the Walker analysis after it refused to abstain.
“Under the [City’s] Standing Bail Order, arrestees are guaranteed a hearing
within 48 hours of arrest to prove their indigency (with court-appointed

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counsel) or they will be released.” Walker, 901 F.3d at 1265. The district
court insisted that the hearing must be within 24 hours even though “[b]oth
procedures agree on the standard for indigency and that those found indigent
are to be released on recognizance.” Id. at 1265–66. The Eleventh Circuit
held that the district court’s imposing the 24-hour obligation was an abuse of
discretion. Id. at 1266–67.
The district court also had ordered the City to use an affidavit-based
system to determine indigency, while the Standing Bail Order provided for
judicial hearings. Id. The Eleventh Circuit rejected that judicial alteration to
the City’s policies. “Whatever limits may exist on a jurisdiction’s flexibility
to craft procedures for setting bail, it is clear that a judicial hearing with court-
appointed counsel is well within the range of constitutionally permissible
options. The district court’s unjustified contrary conclusion was legal error
and hence an abuse of discretion.” Id. at 1268–69.
The circuit court vacated the preliminary injunction imposed by the
district court and allowed the City’s Standing Bail Order to stand. Id. at 1272.
Judge O’Scannlain has shown us our way. Well, obviously, he has
shown only me the way. Abstention requires fact-based analysis on what the
plaintiffs seek and how burdensome it would be. We know that injunctive
relief cannot “require for its enforcement the continuous supervision by the
federal court over the conduct of the [officials involved in setting bail] in the
course of future criminal trial proceedings.” Littleton, 414 U.S. at 501.
Neither can the relief be “a form of monitoring of the operation of state court
functions that is antipathetic to established principles of comity.” Id.
One difficulty in my conception is how to deal with the fact that
plaintiffs’ complaints often are excessive in their demands, anticipating being
pared back as the case proceeds. Courts may grant relief that is far less than

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plaintiffs sought. That reality can be handled by courts’ dismissing suits that
require abstention unless plaintiffs can revise to curb their claims.
In conclusion on whether resolving claims about bail procedures on
the merits automatically leads to an impermissible interference with ongoing
state proceedings, I find the answer to be “no.” A complaint seeking the
kind of relief that was rejected in Littleton and Wallace should cause the court
to abstain. Claims seeking some procedural safeguards, that do not require
monitoring by the federal court and otherwise avoid the excessiveness of
claims in caselaw discussed here, might not require abstention. That
depends on the claims, the existing bail procedures, and other facts. We err
to make a categorical ruling that all such claims would impermissibly involve
the federal court in state criminal procedures.
III. Adequacy of opportunity to raise the federal claim in state court
A consideration for Younger abstention is whether the state provides
an adequate opportunity to bring the same constitutional claims in state court.
Middlesex, 457 U.S. at 432. It is not enough to identify a procedure. The
procedure must be measured for adequacy. I will examine some of the
caselaw already discussed to see how it addressed adequacy of state remedies.
Early in describing Younger adequacy is Gerstein v. Pugh, 420 U.S. 103.
Of course, the opinion concerned determinations of probable cause to detain
someone, not bail, but the adequacy of state procedures is equally relevant to
both issues. The five-justice majority opinion stated that “the Fourth
Amendment requires a judicial determination of probable cause as a
prerequisite to extended restraint of liberty following arrest.” Id. at 114.
Requiring judicial action before an “extended restraint of liberty” occurs
means delay has significance. In addition, the Court reviewed the roadblocks
for a detainee in getting judicial review of probable cause: the prosecutor’s
filing an information meant there would be no preliminary hearing, and

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habeas corpus was only available, if ever, in “exceptional circumstances.” Id.
at 106. “The only possible methods for obtaining a judicial determination of
probable cause were a special statute allowing a preliminary hearing after 30
days, and arraignment, which the District Court found was often delayed a
month or more after arrest.” Id. (citing Pugh v. Rainwater, 332 F. Supp. at
1110) (footnote and statutory citations omitted; emphasis added). The Court
closed its summary by stating “a person charged by information could be
detained for a substantial period solely on the decision of a prosecutor.” Id.
The Court’s emphasis on timeliness is undeniable.
The four concurring justices stated they joined the part of the majority
opinion I just detailed “since the Constitution clearly requires at least a timely
judicial determination of probable cause as a prerequisite to pretrial
detention.” Id. at 126 (Stewart, J., concurring) (emphasis added). The
majority did not take issue with the concurring justice’s using the word
“timely.” The Court had not stated Florida detainees could never obtain
judicial determinations of probable cause, only that it “often” would not be
made for at least a month. Id. at 106. Thus, a lack of a timely determination
was at least part of the reason the majority rejected abstention.
There are other Supreme Court opinions indicating the importance of
timely remedies. One explicit statement is in an opinion analyzing abstention
in the context of a state administrative scheme for disciplining optometrists.
See Gibson v. Berryhill, 411 U.S. 564 (1973). Proceedings were ongoing against
plaintiff Berryhill and others at a state administrative board. Berryhill and
other optometrists sued board members in federal court, claiming that board
members were biased against them. Id. at 570. The Supreme Court stated
that dismissing a federal suit based on Younger abstention “naturally
presupposes the opportunity to raise and have timely decided by a competent
state tribunal the federal issues involved.” Id. at 577 (emphasis added). The
presupposition failed because of the district court’s finding that the board

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members were biased. Id.9 Admittedly, the timeliness portion of the
presupposition did not come into play, only the competence factor.
Nevertheless, Supreme Court dicta “is entitled to great weight.” Hignell-
Stark v. City of New Orleans, 46 F.4th 317, 330 n.21 (5th Cir. 2022).
Berryhill is cited in later significant precedents. In Middlesex, the
Court analyzed abstention in the context of disciplinary proceedings before
an attorney-ethics committee. Such proceedings were held to involve “vital
state interests.” Middlesex, 457 U.S. at 432 (citing Moore v. Sims, 442 U.S. at
426). The Court then wrote that the “pertinent inquiry is whether the state
proceedings afford an adequate opportunity to raise the constitutional
claims.” Id. (quoting Moore v. Sims, 442 U.S. at 430, then citing Berryhill,
411 U.S. 564). The Court found “the state court desired to give Hinds a swift
judicial resolution of his constitutional claims.” Id. at 437 n.16 (emphasis
added). The Court closed with this:
Because respondent Hinds had an ‘opportunity to raise and
have timely decided by a competent state tribunal the federal
issues involved,’ Gibson v. Berryhill, 411 U.S., at 577, 93 S.Ct.,
at 1697, and because no bad faith, harassment, or other
exceptional circumstances dictate to the contrary, federal
courts should abstain from interfering with the ongoing
proceedings.
Id. at 437 (emphasis added).
The Moore v. Sims opinion cited in Middlesex analyzed abstention in a
case involving the Texas Family Code, which allowed the state to take
custody of abused children. Moore v. Sims, 442 U.S. at 418–19. The parents

9
In discussing whether state procedures were “adequate,” the Court summarized
that federal courts have found state agency remedies inadequate “on a variety of grounds.
Most often this has been because of delay by the agency.” Id. at 575 n.14 (emphasis added).

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of children who had been taken into state custody brought suit in federal
court; the district court enjoined the state from prosecuting any suit under
the relevant statutory provisions pending a final decision on their
constitutionality. Id. at 422. The Supreme Court disagreed, holding that
“the only pertinent inquiry [for Younger abstention] is whether the state
proceedings afford an adequate opportunity to raise the constitutional claims.”
Id. at 430 (emphasis added). An earlier, similar statement was supported by
the signal of “see” for Berryhill. Id. at 425 (citing Berryhill, 411 U.S. 564).
A phrase with a possibly different emphasis in both Moore v. Sims and
Middlesex is that “a federal court should abstain ‘unless state law clearly bars
the interposition of the constitutional claims.’” Middlesex, 457 U.S. at 432
(quoting Moore v. Sims, 442 U.S. at 426). Does that mean that absent a clear
prohibition in the state proceedings to raising constitutional claims —
regardless of questions about adequacy — abstention is required? That
hardly makes sense, as the Court in both opinions included the analysis I have
already detailed about adequacy and, in Middlesex, timeliness.
To understand the Court’s use of “clearly bars,” we need its context.
In Sims, the facts about delay were detailed in the district court opinion. That
factual recitation reveals the parents moved for a hearing in state court five
days after a March 26 ex parte order that had removed their children. Sims v.
State Dept. of Public Welfare, 438 F. Supp. 1179, 1184 (S.D. Tex. 1977), rev’d,
Moore v. Sims, 442 U.S. 415. The judge was absent. Id. A hearing was held
on April 5 on a newly filed writ of habeas corpus, but the court decided the
matter needed to be transferred to another county. Id. A hearing was finally
conducted there on May 5. Id. at 1185.
The federal district court stated that the 42-day delay for a hearing
revealed that “in practice the state procedures operate in such a manner as
to prevent or, at the very minimum, substantially delay the presentation of

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constitutional issues,” which meant “abstention would be inappropriate.”
Id. at 1189. Obviously, there were state procedures to hear the constitutional
claims almost immediately after the children were taken from their parents,
but it took over a month for a hearing finally to be held. The plaintiffs
complained about not being “granted a hearing at the time that they thought
they were entitled to one.” Moore v. Sims, 442 U.S. at 430. The Supreme
Court rejected that such episodic delays defeated abstention, as there was no
indication of bad faith on behalf of anyone. Id. at 432. That is the context for
the statement that abstention should apply “unless state law clearly bars the
interposition of the constitutional claims.” Id. at 425–26.
The use of that phrase in Middlesex had similar purposes. The
attorney being disciplined argued there was no opportunity in the ethics
proceedings to have constitutional issues considered. Middlesex, 457 U.S. at
435. The Supreme Court found no support for such a contention:
[Attorney] Hinds failed to respond to the complaint filed by the
local Ethics Committee and failed even to attempt to raise any
federal constitutional challenge in the state proceedings.
Under New Jersey’s procedure, its Ethics Committees
constantly are called upon to interpret the state disciplinary
rules. Respondent Hinds points to nothing existing at the time
the complaint was brought by the local Committee to indicate
that the members of the Ethics Committee, the majority of
whom are lawyers, would have refused to consider a claim that
the rules which they were enforcing violated federal
constitutional guarantees.
Id. (emphasis in original). The Court emphasized that a party must “‘first
set up and rely upon his defense in the state courts, even though this involves
a challenge of the validity of some statute, unless it plainly appears that this
course would not afford adequate protection.’” Id. (quoting Younger, 401 U.S.
at 45 (quoting Fenner v. Boykin, 271 U.S. 240, 244 (1926)) (emphasis added).

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There was no evidence in either Middlesex or Moore v. Sims that
adequate consideration of constitutional challenges was generally unavailable
in state court. Missteps along the way in receiving a hearing or failure even
to use the available procedures did not show inadequacy. Each case cited
Berryhill, which included timeliness as part of adequacy.
The necessity of taking advantage of available state procedures before
claiming inadequacy is the point in other opinions. In one case, plaintiffs held
in contempt by a state court sued in federal court to have the contempt
statute declared unconstitutional; they had not made that claim in state court.
Juidice v. Vail, 430 U.S. 327, 330 (1977). The Court held they “had an
opportunity to present their federal claims in the state proceedings. No more
is required” for abstention; the opportunity could not be flouted. Id. at 337.
The Court discussed the state procedure, which seemingly could have
provided effective relief. Id. at 337 n.14.
Another Supreme Court decision relying in large part on a party’s
shunning state procedures is Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987).
An historically large jury verdict of $10.5 billion was entered against Texaco
after a jury trial in state court. Id. at 4. In Texas, an appellant had to post a
bond in the amount of the judgment, plus interest and costs. Id. at 5. Texaco
could not afford the bond; instead of seeking relief in the state court itself, it
filed suit in federal court and alleged the application of the requirement of so
large a bond violated Texaco’s constitutional rights. Id. at 6.
Texaco insisted “that Younger abstention was inappropriate because
no Texas court could have heard Texaco’s constitutional claims within the
limited time available.” Id. at 14. The Supreme Court responded: “But the
burden on this point rests on the federal plaintiff to show ‘that state
procedural law barred presentation of [its] claims.’” Id. (quoting Moore v.
Sims, 442 U.S. at 432). “Moreover, denigrations of the procedural

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protections afforded by Texas law hardly come from Texaco with good grace,
as it apparently made no effort under Texas law to secure the relief sought in
this case.” Id. at 15. The Court also quoted the same Younger language I
earlier quoted: “‘The accused should first set up and rely upon his defense
in the state courts, even though this involves a challenge of the validity of
some statute, unless it plainly appears that this course would not afford
adequate protection.’” Id. at 14–15 (quoting Younger, 401 U.S. at 45).
In sum, the Supreme Court did not say timeliness was irrelevant. It
wrote that before arguments about adequacy would be entertained, the party
seeking to avoid abstention must be able to prove the inadequacy of the state
procedures. Texaco had failed even to try. Yes, the Court also again referred
to whether state procedures “barred” the claims. Also, again, the context
for the reference includes whether state remedies would “afford adequate
protection.” Id. (emphasis added).
Some of the circuit court opinions I discussed earlier are useful here
too. In Wallace III, the Second Circuit highlighted the Gerstein v. Pugh
concern about delay in Florida procedures:
It is significant, therefore, that the Supreme Court’s opinion in
Gerstein emphasizes at the outset that the federal plaintiffs
there had no right to institute state habeas corpus proceedings
except perhaps in exceptional circumstances and that their
only other state remedies were a preliminary hearing which
could take place only after 30 days or an application at
arraignment, which was often delayed a month or more after
arrest.
Wallace III, 520 F.2d at 406. The court then stated: “We do not consider
this discussion feckless,” i.e., the discussion of limited procedures and
inherent delays was meaningful; it affected the result. Id.

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In “sharp contrast” to Florida procedures, the Wallace III court
explained that New York procedures “provide that a pre-trial detainee may
petition for a writ of habeas corpus in the [trial-level] Supreme Court, that its
denial may be appealed and that an original application for habeas may be
made in the Appellate Division of the Supreme Court.” Id. at 407 (statutory
citations omitted). The Second Circuit faulted the district court for first
making a fact finding “that state habeas relief was available to the plaintiff
class with provision for appeal to the Appellate Division,” but then not
discussing “the availability of this remedy in that part of the opinion which
rejected” the application of Younger abstention. Id. at 404–05. In addition,
the Wallace III opinion stated that the record supported that one remedy —
an evidentiary hearing on bail — had never been requested by any prisoner,
and had it been, a hearing would have been conducted. Id. at 407.
Though the Wallace III court identified delay as important in Gerstein
v. Pugh, the Second Circuit was silent on how quickly New York procedures
could be employed.10 The explanation in Middlesex, 457 U.S. at 435, may
apply: inadequacy of state remedies must be shown. In Wallace, no one had
even sought an evidentiary hearing on bail. In other words, available
procedures were not tried and found wanting; they were not even tried.
A Second Circuit opinion relying on Wallace III held that timeliness
mattered. See Kaufman v. Kaye, 466 F.3d 83 (2d Cir. 2006). Kaufman
brought a federal suit to challenge the manner in which appeals were assigned
among panels of judges in state court. Id. at 87. Abstention was necessary

10
I obtained the unpublished district court opinion reversed by Wallace III to see if
it had fact-findings about delay. Findings included existence of lengthy pretrial detention,
long delay in indicting those arrested for felonies, and substantial delays for trial. Wallace,
No. 72-C-898 (Feb. 14, 1975), at *7–9. As to habeas, though, all the district court stated
was that a prisoner could apply to the state trial court, and review of its decision would then
be available in that court’s appellate division. Id. at *9. Nothing useful there.

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because “the plaintiff has an ‘opportunity to raise and have timely decided by
a competent state tribunal’ the constitutional claims at issue in the federal
suit.’” Id. (quoting Spargo v. New York State Comm’n on Judicial Conduct,
351 F.3d 65, 77 (2d Cir. 2003) (emphasis added).
The quoted Spargo case was brought by state judges claiming that
judicial ethics rules restricted their First Amendment rights. Spargo, 351 F.3d
at 69–70. The Second Circuit stated that “to avoid abstention, plaintiffs
must demonstrate that state law bars the effective consideration of their
constitutional claims.” Id. at 78 (emphasis added). That decision quoted the
Supreme Court that plaintiffs, if they have an “opportunity to raise and have
timely decided by a competent state tribunal” their constitutional claims, the
federal courts should abstain. Id. at 77 (quoting Middlesex, 457 U.S. at 437)
(emphasis added). The court summarized by stating that plaintiffs can
proceed in federal court if they can “demonstrate that state law bars the
effective consideration of their constitutional claims.” Id. at 78. The
Kaufman court later quoted this statement in Spargo about “effective
consideration.” Kaufman, 466 F.3d at 87. Effectiveness, not just existence,
of state procedures for raising constitutional claims is needed. Depending on
the issue, effectiveness can turn on timeliness.
This review of the caselaw revealed no precedents that refused to
abstain because of untimely state procedures as to bail. Even so, the Supreme
Court in Berryhill and Middlesex and the Second Circuit in Kaufman and
Spargo all explicitly required timely state procedures. The Court also held
that the Fourth Amendment required judicial intervention before there was
an “extended restraint of liberty following arrest.” Gerstein v. Pugh, 420 U.S.
at 114. Adequacy generally of the available state procedures was discussed
by the Supreme Court in Gerstein v. Pugh, Moore v. Sims, and Middlesex, and
by the Second Circuit in Wallace III, Kaufman, and Spargo. The adequacy,

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including timeliness, of state procedures did not require measurement in
Middlesex, Juidice, Texaco, or in Wallace III because they had not been tried.
A distinction is appropriate here. Delays in a criminal prosecution do
not allow a defendant to seek federal court relief unless there is bad faith in
the proceedings. Moore v. Sims, 442 U.S. at 432. “[T]he cost, anxiety, and
inconvenience of having to defend against a single criminal prosecution”
cannot amount to irreparable injury. Younger, 401 U.S. at 46. The
prosecution likely violates no rights, so its tribulations must be endured.
Quite differently, unconstitutional pretrial detention leads to injury that is
different in kind as well as degree to the cost, anxiety, and inconvenience of
being prosecuted. An unconstitutional pretrial detention is an immediate
violation of a right. It should not have to be endured any longer than
necessary. It is difficult for me to see, when dealing with a potentially
unconstitutional “restraint of liberty following arrest,” Gerstein v. Pugh, 420
U.S. at 114, how adequacy of a remedy can be divorced from its timeliness.
The majority discusses the statutory procedures available in Dallas
County and in Texas. See Majority op. at 18–19. Of importance, though, the
Supreme Court in 1975 stated that procedures available in Dade County and
in Florida were too delayed to support abstention. Gerstein v. Pugh, 420 U.S.
at 106, 123–25. The district court on remand in this case was not given much
evidence, but it identified one example (from four decades ago) of quite slow
habeas procedures. See Ex parte Keller, 595 S.W.2d 531 (Tex. Crim. App.
1980). Any future case regarding bail procedures should create a factual
record that allows a determination of adequacy — including timeliness.
IV. Conclusion
This appeal is moot. Any future litigation about bail in Dallas County
would need to address the new law labeled S.B.6. See Act of August 31, 2021,
87th Tex. Leg. 2d C.S., S.B. 6). Those procedures are the ones that now

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must provide adequate, timely mechanisms for adjudicating constitutional
claims.
For purposes of this opinion, I accept that Younger analysis should be
applied to claims about bail. I do not see that impermissible interference with
state courts will always result if a federal court enters orders regarding state
court bail procedures and policies. We know that what some district courts
have done, such as the relief granted in Littleton or in Wallace, is
unacceptable. Those actions were impermissibly intrusive, and abstention
was invoked. Lesser claims and remedies as in Walker might be permissible.
There are guardrails for intrusions as to bail but not a locked gate.
As to the adequacy of state court remedies, a significant point of
departure for me from the majority is that I believe the timeliness for any
review of the constitutional claim is relevant. When dealing with whether
someone is unconstitutionally being detained before trial, abstention due to
too-slow-to-matter review in state court is an abdication of the federal court’s
“virtually unflagging obligation” to decide a case for which it has jurisdiction.
See Colorado River Water Conservation Dist., 424 U.S. at 817.
In closing, I acknowledge plaintiffs’ goal in bail litigation may be to
require release of almost all arrestees without money bail. Regardless, our en
banc statement was correct that “[r]esolution of the problems concerning
pretrial bail requires a delicate balancing of the vital interests of the state with
those of the individual.” Pugh v. Rainwater, 572 F.2d at 1056.
Indigents have constitutional rights after an arrest. See id. at 1056–59.
States must strive to protect those rights. In populous jurisdictions such as
Dallas County, individualized determinations of the need for bail for each
arrestee may seem all but impossible. The record as to past practices
supports that each arrestee was rapidly processed by a magistrate judge as to
bail so the judge could then advance to the next arrestee. Even so, not

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releasing those who are dangerous or likely to disappear, or at least not
releasing without some form of restraint such as bail, are vital state interests.
Whether the constitutional rights of arrestees are protected while the
state seeks to uphold its interests in Dallas County must now to be analyzed
under the new legislation. Any litigation would need to be in state court if
the conditions for abstention are met. We cannot answer now whether those
conditions will be satisfied. Therefore, though I concur in judgment, I do not
join the portion of the majority’s opinion analyzing abstention.

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Stephen A. Higginson, Circuit Judge, joined by Stewart, Dennis
and Haynes, Circuit Judges, concurring in part, dissenting in part:
Fifth Circuit precedent states, “[I]n some limited instances, ‘a federal
court has leeway to choose among threshold grounds for denying audience to
a case on the merits.’” Env’t Conservation Org. v. City of Dallas, 529 F.3d 519,
525 (5th Cir. 2008) (emphasis added) (quoting Sinochem Int’l v. Malaysia
Int’l Shipping, 549 U.S. 428, 431 (2007)). This is not “one of those
instances.” Id.
With our sister circuits, we have recognized that the leeway granted
by Sinochem is not boundless, but “carefully circumscribed” to cases
“‘where subject-matter or personal-jurisdiction is difficult to determine,’
and dismissal on another threshold ground is clear.” Snoqualmie Indian Tribe
v. Washington, 8 F.4th 853, 863 (9th Cir. 2021) (quoting Sinochem, 549 U.S.
at 436), cert. denied sub nom. Samish Indian Nation v. Washington, 142 S. Ct.
1371 (2022), and cert. denied, 142 S. Ct. 2651 (2022); accord Env’t
Conservation Org., 529 F.3d at 524-25 (Where a “res judicata analysis is no
less burdensome than” an inquiry into mootness—the “doctrine of standing
in a time frame”—we may not decide the case on grounds of res judicata.).
One danger of the discretion Sinochem affords is that courts will “use the
pretermission of the jurisdictional question as a device for reaching a question
of law that otherwise would have gone unaddressed.” In re Facebook, Inc.,
Initial Pub. Offering Derivative Litig., 797 F.3d 148, 158-59 (2d Cir. 2015)
(emphases added) (quoting Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 98 (1998)).
I would decline the narrow discretion Sinochem permits. It is notable
that the majority’s discussion of Younger spans more than four times the
length of its discussion of mootness. There is no plausible suggestion the
court is motivated by judicial economy. Instead, I fear, our court today uses
Sinochem as a device to expansively critique Supreme Court, prior Fifth

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Circuit, and sister circuit case law. See ante, at 17 (limiting Gerstein v. Pugh,
420 U.S. 103 (1975)); id. at 19-21 (criticizing then overruling ODonnell v.
Harris Cnty., 892 F.3d 147 (5th Cir. 2018)); id. at 21-22 (criticizing Walker v.
City of Calhoun, 901 F.3d 1245 (11th Cir. 2018)).1
I would hold that this case is moot and affirm on that basis alone.

1It is impossible to overlook that the important liberty versus public-safety
controversy over pretrial detention and cash bail practices, first confronted in
ODonnell and then here, did lead to Texas legislative reform. Federal court
intervention appears to me to have been less an interference than a catalyst for state
reform.

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James E. Graves, Jr., Circuit Judge, dissenting:
“Simply stated, a case is moot when the issues presented are no
longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”
Powell v. McCormack, 395 U.S. 486, 496 (1969). “The burden of
demonstrating mootness ‘is a heavy one.’” Los Angeles Cty. v. Davis, 440
U.S. 625, 631 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629,
633 (1953)). Mootness can occur when “interim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.”
Id. In New York State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct.
1525 (2020), the Court held that New York City’s amended gun rule mooted
the case because it was “the precise relief that petitioners requested in the
prayer for relief in their complaint.” Id. at 1526.
Plaintiffs here, however, are challenging the practices of bail
determination in Dallas County. They are not challenging S.B. 6 or any other
statute. On limited remand, the district court admitted into the record
Plaintiffs’ evidence, which showed that the alleged illegal practices continue
post-S.B. 6. The case the district court relied on in finding the case moot,
Pugh v. Rainwater, 572 F.2d 1053 (5th Cir. 1978), is distinguishable. While
Pugh also dealt with pretrial bail issues, the court held that “[t]he record
before the Court contains only evidence of practices under criminal
procedures which predate the adoption of the current Florida rule.” Id. at
1058. The court concluded that it “determined that on its face [the newly
enacted statute] does not suffer such infirmity that its constitutional
application is precluded.” Id. It further expressed that any constitutional
challenge to the newly enacted statute should wait until “presentation of a
proper record reflecting application by the courts of the State of Florida.” Id.
1058–59

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Here, Plaintiffs provided evidence that the complained about
practices persist despite S.B. 6’s enactment. Plaintiffs describe post-S.B. 6
video evidence where the alleged unconstitutional practices continue. This
case is not automatically mooted simply because S.B. 6 addresses bail
practices. Plaintiffs allege that there remain continuing constitutional
violations and that S.B. 6 does not provide the relief Plaintiffs requested in
the prayer for relief in their complaint. Six months of post-S.B. 6 video
evidence does not prevent the court from “meaningfully . . . assess[ing] the
issues in this appeal on the present record.” Fusari v. Steinberg, 419 U.S. 379,
387 (1975).
I would find that the case is not moot. Therefore, I respectfully
dissent.

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